The Constitutional Collection: An Anglo-American Reader

Improperly Obtained Evidence in Anglo-American and Continental Law
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Once a Jacobin, Wordsworth had been England's poet laureate at the time of his death in , and in many ways his poetry had come to be considered national poetry. An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while. Read preview. Read preview Overview.

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Levine University of North Carolina Press, Canadian Journal of Behavioural Science, Vol. American University Law Review, Vol. Beauvoir, Simone de The Columbia Encyclopedia, 6th ed. They certainly provided the texts for the theory of the Norman Yoke and the argument that the Charter was restorative as they were developed in the seventeenth century. Tottell also included it in his Magna Charta cum Statutis Coke possessed copies of both the Perambulation and Archaionomia. There is a most direct textual link between the thirteenth and the seventeenth centuries.

This textual dependence of Coke and others on the achievement of the medieval period extends across the whole activity of the intellect and the imagination: legend, the logical assumptions and implications of legal actions, interpolations in ancient laws, the promises of long dead kings, the charters themselves, the arguments about them, the construction and interpretation of them in plea and statute. Coke and his contemporaries must not be deprived of all capacity for individual thought.

But even when original, in construing the Charter as prohibiting monopolies, for example, Coke was conforming in his method to a medieval pattern. The most important aspects of the antiquarian movement of the seventeenth century lie in the simple things. First, the antiquaries revived the Charter, looked at it as a whole, took in many of the medieval constructions and glosses, provided some of their own, although not many, and, above all, in truly medieval style, proceeded to apply the great tradition to their own particular circumstances.


After observing that :. But if men turned to the charter as the only vehicle available, it was not necessarily going to be the most convenient in the long run. A second feature of the charters had more to do with government. The interchanges between King John and Pandulf that contrasted the good laws of the Confessor with the evil laws of the Conqueror were recorded long after the event. Have you read any October releases that you would recommend? Certainly, such liberties were derived from royal concession and nowhere else. A series of letters to the editor of The Gentleman's Magazine were published as a follow-up exchange on the Declaration debate : pro- British letters signed Patrio Mastix and pro-American letters signed Philander.

Second, this renaissance was in part the work of officials of the Crown like Lambarde and was manifested most powerfully by a chief justice, Sir Edward Coke. Judges are not noted for conducting manifest private warfare within the structure of royal government.

Yet Coke did just that and had the intellectual confidence, the indignation, to Edition: current; Page: [ [74] ] persist. At the time this seemed important. The Second Institute was prohibited and only published posthumously by order of the Long Parliament in If that is the case it leaves us with a problem. What were the intellectual origins of the English Revolution? Or perhaps it might be put differently. Was the so-called English Revolution any different in its origins from the political movements which from time to time had disturbed the tenor of medieval England?

Legal thought and questions about the relationship between legal ideas and other strains of political and social theory are important and interesting aspects of sixteenth- and seventeenth-century English history, but they are subjects which have suffered in recent years both from scholarly neglect and from misunderstanding.

The neglect can be explained partly by reference to the sociology of knowledge. British universities, which were founded and flourished for much of their history as training grounds for clerics, have recently been much more successful in producing students of ecclesiastical history and religious ideas than of legal history and juristic thought.

At the same time much recent writing on the political and social history of the period, such as the so-called revisionist reinterpretations of the causes of the civil wars of the mid-seventeenth century, has tended to discount the role of ideas of any kind, much less legal ideology, in the general history of the period. This neglect is also, of course, one of the primary reasons for the misunderstandings of English legal thought which have accumulated over the years. In particular, it accounts for a failure to investigate or reinterpret a category of analysis which has for too long exercised a paradigmatic influence on our conceptions about the nature of legal ideas about politics and society—the notion of the common law mind.

This concept became an orthodoxy in modern scholarship with the publication in of Professor J. Concerned mainly with the attitudes of lawyers to the past and basing his thesis largely on the works of Sir Edward Coke and his contemporary Edition: current; Page: [ [76] ] Sir John Davies, Pocock postulated a typical common law view of politics and society which was essentially a forerunner of that made famous by Edmund Burke in His Reflections on the Revolution in France According to Pocock, the key to the common law mind was the assumption that English law had no history, that it had been virtually unchanged by any of the major or minor upheavals in the history of England either before or after the Norman Conquest.

English lawyers thought that English laws were the best laws because they represented the product of immemorial custom, a kind of mystical process by which the common law had proven itself to be satisfactory to the English through constant usage from a time beyond the written records or memories of men.

There is no doubt that parts of this picture demand assent. Furthermore, so much of the debate to date has been about legal attitudes toward history that we tend to lose sight of more general legal attitudes toward the law, politics, and society. Consequently it is far from clear how significant the ancient constitution was within the nexus of thought and practice which made up the intellectual environment of the legal profession and which was transmitted by the lawyers to the wider public. Integral to both questions is the problem of what it was that might have made up the legal mentality of both lawyers and laymen of different social groups during the early-modern period, and the ways in which these mentalities may have changed over time.

The object of this paper is to approach this problem by looking first at the structure of legal thought in general during the sixteenth century. In general, the picture that emerges is quite different from that of the common law mentality we have known for so long.

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In the first place, English legal thought in this period is best seen as part of the broader European tradition of Renaissance jurisprudence rather than sui generis, and for that reason I have perhaps gone overboard in avoiding the term common law mind. Second, but perhaps not surprisingly when it is considered that the Tudor state frequently presented itself as an absolute monarchy, sixteenth-century lawyers were as often concerned with order, and indeed the basic problem of political obligation, obedience, as with questions concerning the liberty of the subject.

For both of these reasons, neither ancient constitutionalism nor Magna Carta, at least until the s, was a very significant feature of legal thought. There was a distinctive legal mentality during this period, but it contained many branches. Ancient constitutionalism was only one of them, and a relative latecomer at that.

Finally, the paper offers an account of the particular circumstances in the late sixteenth century and first decade of the seventeenth which led Coke to express for the first time an ancient constitutionalist account of English law and government. I conclude with some brief remarks on the broader significance of early-modern legal thought in the Anglo-American political tradition.

The sixteenth century was a great age for the English legal profession. From the s, but especially from about , there was a spectacular increase in the amount of litigation which came before the central courts, so that by the rate of litigation in the royal courts per , of population was about four times greater than it is today. At the same time, the legal profession centered on the Westminster courts grew from a relatively small band of lawyers to a social group with a profile relative to the size of the population as a whole that was little different from that of the early twentieth century.

It is not surprising, therefore, that much Tudor social and political thought, and not just that produced by lawyers, was articulated in legalistic terms. Yet in spite of this, an attempt to identify the most basic attitudes of English lawyers toward their law and its place in society does have to confront problems of evidence.

Anglo-Saxon texts

The English legal profession and English legal education had an overwhelmingly vocational orientation. Lawyers learned their craft at the Inns of Court in London rather than in the universities. The inns had a teaching function and some teaching exercises. Indeed, the sixteenth century can be said to have marked a high point in the history of the inns as intellectual centers, and this is important in considering the role of legal ideology in this period.

Nevertheless, there were limits on the extent to which English lawyers were free to speculate about jurisprudential matters.

The senior members of the inns were primarily active practitioners; no English lawyer earned his living exclusively from teaching or writing about the law. The legal thought of the period must be pieced together from the examination of the odd textbook, one-off tracts, lectures delivered to students at the Inns of Court, and Edition: current; Page: [ [79] ] speeches made at meetings of courts such as quarter sessions and as-sizes.

English jurisprudence was not highly articulate, but it did consist of a number of identifiable assumptions and ideas. In most respects their approaches were quite dissimilar. By contrast, the writer to whom Fortescue refers most frequently is Aristotle, and De Laudibus is in essence an Aristotelian account of the place of law in society filtered through the interpretations of the medieval schoolmen. According to Fortescue, the grounds of English law were the divine laws which permeate throughout the universe, natural law, and human laws in the form of statute and custom.

Divine law and natural law were ideally discovered either by revelation or by a kind of divine light which illuminated the intuitions of man. Consequently, although human or positive laws were supposed to conform to the higher laws of God and nature, there were inevitably going to be some areas in which such guidance was unclear. In these circumstances, Fortescue thought that the maxims of the human law in England the maxims of the common law should be used as the basis for judicial decision-making.

However, human laws contrary to the laws of nature were invalid, Edition: current; Page: [ [80] ] and, if necessary, there was no reason why human laws should not be amendable in order to bring them into line with the higher laws. Many similar opinions, although much more skillfully elaborated, can be found in another work which became a classic in the canon of sixteenth-century legal thought, Christopher St. First published in Latin in , this treatise aimed to lay down a set of rules about the circumstances in which men should be allowed to seek remedies in cases of conscience from the court of chancery; it is the fundamental early-modern statement about the grounds for equitable relief within the English legal system.

But, although the objectives of the tract were in this sense fairly technical, the realization of them involved the use of quite sophisticated philosophical arguments about the nature of law. German enjoyed a reputation as a thinker with expertise in the common, civil, and canon laws as well as in philosophy and the liberal arts, and his concept of equity was drawn largely from the work of the fourteenth-century Parisian conciliarist Jean Gerson. Doctor and Student, which is in the form of a dialogue, begins with a doctor of divinity asking a student of the common law about the grounds on which the law of England is based. The reply is that there are six grounds: the laws of God, the laws of nature which in England are called the laws of reason , diverse general customs of the realm, maxims of the common law, diverse particular customs, and, finally, parliamentary statutes.

For example, the student points out that in England the law of property is based only on the authority of a custom of the realm which is not contained in any writing or statute. Edition: current; Page: [ [81] ] He even wonders whether such a custom can be considered a sufficient authority for any law. The reply of the doctor is that a law grounded on custom is the most certain law, but it must nevertheless be understood that such a custom cannot be allowed if it is contrary to the law of reason or the law of God.

Between the publication of Doctor and Student and the early seventeenth century there is no English law book which sets out so systematically an overview of the nature of law. Nevertheless, there is little doubt that the kind of scholastic thought which both Fortescue and St. German espoused survived largely intact into the reign of Elizabeth, which began in Quite apart from the fact that there were frequent references to both writers, Aristotelian teaching was an important part of the syllabus of the universities, and during this age of rapidly rising admissions, many more common lawyers than ever before prefaced their legal educations with a period of study at Oxford or Cambridge.

John Case, whose Sphaera Civitatis, a commentary on the Politics, became a basic university textbook in the s. The survival of scholastic jurisprudence can also be illustrated by examples drawn from everyday legal practice. The notion that law had to conform to the English version of the law of nature, right reason, remained fundamental. The decision-making process of the judiciary was discussed in these terms.

In an age in which printed law reports Edition: current; Page: [ [82] ] were still anything but comprehensive, there was as yet no clearly established principle that past precedents should bind current decisions. For example, A Treatise Concerning Statutes or Acts of Parliament referred frequently to Doctor and Student in the course of developing an argument that existing laws which were not conformable to the laws of reason should be corrected by statute. In short, the anonymous author of this tract presents a justification for the mass of Elizabethan parliamentary legislation which is perfectly compatible with the views of Fortescue or St.

German, but very far from vaunting the perfection of immemorial common law in the manner of Coke. However, if scholastic Aristotelianism and a fundamental outlook which stressed natural law theory were aspects of English legal thinking which may be said to have been inherited from the medieval past, there were also newer influences, or at least changes in emphasis, which arose out of the specific conditions of the sixteenth century itself.

The Constitutional Collection An Anglo American Reader

As is well known, the Elizabethan age in particular seems to have been obsessed with general fears of social and political chaos, and this was reflected in common law thought by a striking emphasis on obedience and law enforcement. To a large extent this was a product of the quite real threats posed to the realm by religious heterodoxy, the possibility of invasion by the most powerful country in Europe, Spain, and by the dislocation characteristic of a society in which the number of people was rapidly outpacing the capacity of the economy to employ them.

Yet, this new strand in legal thinking also had identifiable roots in the intellectual inheritance of the English Renaissance.

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In England, as elsewhere in Europe, the key to the Renaissance was the humanist movement, and humanism can be defined accurately, if rather generally, as simply a revival of interest in the classical literature of ancient Rome. Surprisingly perhaps, this early sixteenth-century classical revival had a considerable influence on the legal profession.

In his De Laudibus, Fortescue identified lawyers with priests, Edition: current; Page: [ [83] ] but during the s and s, a new image began to emerge. Like some other English humanists, he found the law French of the common law barbarous in comparison with the classical Latin that was his ideal.