1

First Class• Distribute

– Slides

• Voice recorder on• Agenda

– Description of course– Administrative matters– Historical background

• Politics & War• Economics & Demography• Language & Literature• Science & Technology

– Introduction to English Constitutional History

2

Description of Course• Broad Scope

– 600 - present• Lots of topics

– Constitutional law• Does writing matter?• How enforced?

– Criminal law & procedure• Prosecution• Trial• Punishments

– Civil law and procedure• Common law / precedent / statutes• property, contract, tort

– Women and family– Serfdom, slavery

3

Administrative Matters I• Name plates

• Syllabus– Website: www.klerman.com, “Legal History” button– No laptops, cellphones, iPads, etc.– Class participation is 25% of grade

• Email me if absent or don’t want to be called on• dklerman@law.usc.edu

– Office hours: • One hour after every class, except the two classes which end at

21:30• In 013 Zvi Meitar Center for Advanced Legal Studies

– 2 corrections• Class 3 (F 16 March) starts at 10:20, not 10:30• Class 9 is Wednesday 27 March, not Wednesday 14 March

4

Geography & Terminology• Great Britain (or Britain)

– Island comprising England, Wales, Scotland

• United Kingdom– Great Britain & (Northern)

Ireland

• Course will focus on England– Scotland has very different

legal system– Ireland different, even before

independence of southern part– Wales very similar to England

5

Periodization• All periodization rough and contestable• 400 – 1065. Early Middle Ages

– “Anglo-Saxon” period

• 1066-1484. Later Middle Ages– Norman Conquest through War of Roses

• 1485-1775. Early Modern Period– Tudors and Stuarts, Civil War, Glorious Revolution

• 1776-present. Modern Period– American Revolution to present

6

Celtic Britain• Britain inhabited by Celtic peoples starting

before approx. 900 B.C.– Organized in tribal groups

• Referred to by Romans as “Britons”• No central government

– Non-literate• Almost nothing known about law

7

Roman Britain• Romans conquered Britain

in 43 A.D.– Relatively few people, but

large impact– Built roads, baths, walls– Founded cities (London,

Canterbury, Manchester…)– Brought Roman Law

• But relatively little known about legal administration

• Most of population probably governed by local, pre-Roman custom.

Baths at Chedworth Roman villa

8

Early Middle Ages I

• Big Theme: England is weak• “Barbarian” Germanic invasions around 400 AD

– Destroyed Roman Empire• Franks to Gaul (“France”),

Visigoths to Spain, etc.• Angles, Saxons, Jutes to

Britain (“England”)• Hence English are

sometimes today referred to as “Anglo-Saxons”

9

Early Middle Ages II– Large numbers of “Anglo-

Saxon” settlers• Brought Germanic language (“Old

English”) and culture– Including legal customs, such as

blood feud and monetary compensation

• Celtic peoples remained dominant in Ireland, Wales, and Scotland

– Politically fragmented• Kingdoms of Wessex, Mercia, etc.

– Conversion to ChristianityAnglo-Saxon helmet & mask

10

Early Middle Ages III• Viking Invasions (8th –

11th centuries)– From Scandinavia – First raided– Then settled

• Provoked English resistance and political unification– King Alfred (871-899)

11

Later Middle Ages I• Big Theme. Establishment of strong

royal government• Norman Conquest (1066)

– William the Conqueror claimed England in disputed succession

– William displaced most of Anglo-Saxon aristocracy

• Distributed land to Norman followers, churches & monasteries

• Feudalism – land in return for military service

– Established strong centralized rule over all of England

• Castles• Domesday book survey to facilitate taxation

Bayeux Tapestry

12

Later Middle Ages II• Henry II (1154-1189)

– Established peace after “anarchy” of King Stephen– Destroyed or took control of baronial castles– Key figure for establishment of English legal system

• “Birth of Common Law”

• King John– Taxed heavily to finance failed wars– Barons revolted

• Magna Carta was negotiated settlement

• Parliament– From mid-13th century, gradual evolution of principle that taxation and

legislation requires consent of people in Parliament

• Hundred Years War (1337-1453)– English kings fought for control of France– English lost

13

Early Modern Period• Big Theme. Increasing Importance of Parliament• Tudor Dynasty (1485-1603)

– Henry VII took power after War of Roses– Henry VIII broke from Pope

• Establishes Protestant Church of England– Queen Elizabeth started colonization of North America

• Stuart Dynasty (1603-1714)– Tried to rule without Parliament and reestablish Catholicism– Provoked resistance

• Civil War (1642-51). Execution of Charles I• Commonwealth (1649-60). Parliamentary rule without King• Glorious Revolution (1688). Flight of James II

– Parliament welcomed William III and Mary

• Hanoverian Dynasty (1714-1901)– Parliament became increasingly powerful– England becomes dominant world power

14

Modern Period• American Revolution (1776)

– American colonists defeat British with substantial French assistance

• 20th Century– World War I (1914-18), World War II (1939-45)

• America emerges as a world power• Britain declines as world power

– Rise of “Welfare State”• Social Security, Unemployment Insurance, Medicaid & Medicare

15

Economic History IGDP per capita, England & U.S., 1086-2000

0

5000

10000

15000

20000

25000

30000

35000

40000

45000

1086 1300 1688 1759 1801 1900 2000

Year

GDP

per

cap

ita (2

006

dolla

rs)

English GDP per capital

US GDP per capita

• Data before 1900 very rough

• Large increases after 1800– Industrial Revolution

• Harder to see– tripling of GDP per

capita btw 1086 & 1300• Commercial Revolution

– Also quadrupling btw 1300 & 1688

– stasis in early modern period. 1688-1801

– considerable year-by-year variation

• Great Depression 1929-39

16

Economic History II• Medieval and early modern economy was

dominated by agriculture– Vast majority of population were farmers

• Did not live in cities

– Main industry was textiles– Main English export was wool

• Modern economy– Proportion of farmers dwindled to less than 5%– Rapid expansion and partial contraction of industrial

workforce– Rise of service economy, now over 2/3rds

17

Value of MoneyYear Value of $1 in 2012

dollarsValue of £1 in 2012 dollars

Craftsman’s daily wage

1270 $873 3d

1300 818 3.5d

1400 740 5d

1500 927 6d

1600 283 1s

1700 250 1s 8d

1800 $20 130 3s

1900 28 157 6s 8d

2000 1.32 2

Because of the nature of the surviving records, all figures should be treated as approximations, not exact values.

Units of money (before February 12, 1971) 1 pound (£1) = 20 shillings (20s)1 shillings (1s) = 12 pence (12d)1 mark = 13s 4d which is two-thirds of a pound

18

Population IPopulation England & US, 1086-2000

0

50

100

150

200

250

300

1086 1300 1348 1550 1688 1759 1801 1900 2000

Year

Popu

lation

in M

illion

s

England

U.S.

• Data before 1800 very rough• Large increases after 1800

– Industrial Revolution– Increase in life expectancy– Immigration

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Population II

Log Population, England & US, 1086-2000

0

1

2

3

4

5

6

1086 1300 1348 1550 1688 1759 1801 1900 2000

Year

Popu

lation

-ln(m

illion

s)

EnglandUS

• Logarithmic scale makes it easier to see changes before1800

• dramatic increase in population from 1080 to 1300 – Peace, increases in

agricultural productivity– Assarting (cultivation of

new lands)• Black Death (1348)

– Killed a third to a half of population

– Recurred periodically for 200 years

• Kept population low

20

                                                                                                                             

From NASA. http://vathena.arc.nasa.gov/curric/land/global/climchng.html

Climate History

21

Language & Literature• Early Middle Ages

– Old English– Beowulf

• Hwæt! wē Gār-Dena in geār-dagum, / þeod-cyninga, þrym gefrunon, • Translation:

– Lo! We of the Spear-Danes in days gone by / of the kings, of fame have heard

• Later Middle Ages– Middle English– Chaucer, Canterbury Tales

• Whan that Aprill with his shoures sote / The droghte of Marche hath perced to the rote,

• Translation:– When April with its sweet showers has pierced / the drought of March to the root,

• Early Modern– Shakespeare. Friends, Romans, countrymen, lend me your ears

• Modern– Dominance of the novel– Jane Austen, Herman Melville, James Joyce

22

Science & Technology I• Early Middle Ages

– Stirrup• Led to military dominance of

mounted horseman (knights, feudalism)

– Labor saving devices• Improved animal harness• Spread of water mill

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Science and Technology II• Later Middle Ages

– Gothic Cathedrals– Mechanical clock– Printing press

Gloucester Cathedral

Clock mechanism from 1386

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Science and Technology III• Early Modern Period

– Sir Isaac Newton• 3 laws of motion

– Steam Engine

A labeled schematic diagram of a typical single cylinder, simple expansion, double-acting high pressure steam engine. Power takeoff from the engine is by way of a belt.1 - Piston2 - Piston rod3 - Crosshead bearing4 - Connecting rod5 - Crank6 - Eccentric valve motion7 - Flywheel8 - Sliding valve9 - Centrifugal governor

Sir Isaac Newton

25

Science and Technology IV• Modern period

– Dramatic acceleration of scientific and technological change

• Science– Charles Darwin. Theory of Evolution– Albert Einstein. Theory of Relativity

• Technology– Trains, planes and automobiles– Electricity and electronics– Genetic engineering

The Salamanca. The first commercially successful locomotive (1812)

Charles Darwin

26

  War & Politics Economics & Population

Language & Literature

Science & Technology

  Early Middle Ages(400-1065)

End of Roman ruleGermanic invasionsViking invasionsKing Alfred

  Old English

Beowulf

Stirrup

Improved harness

Spread of water mill

 Later Middle Ages(1066-1484)

Norman Conquest (1066)

Henry II (1154-89)

Hundred years War

Commercial Revolution

Black Death (1348)

 

Middle English

Chaucer, Canterbury Tales

Gothic cathedral

Mechanical clock

Printing press

 Early Modern(1485-1775)

Queen Elizabeth

Colonization of America

English Civil War (1642-51)

Glorious Revolution (1688)

  Shakespeare Newton

Steam engine

 Modern(1776-

American Revolution (1776)

American Civil War (1861-65)

World War II (1939-45)

Industrial Revolution

Great Depression (1929-39)

 

Jane Austen

 

Einstein

Darwin

Electricity & electronics

Trains, planes & cars

Genetic engineering

Constitutional Law• Issues

– How are rulers chosen?– What powers do rulers have?– If power is not unitary, how is it distributed?– How are rules enforced?

• Key issue• What stops rulers from seizing more power than allowed by

constitution?• Plato “Who will guard the guardians?”

• Constitution need not be:– Written, i.e embodied in a special document– Entrenched, i.e. changed (amended) only by difficult

procedures

Feudalism I• Feudalism was a society ruled by a military elite (nobility) of

lords and vassals, in which a vassal received land (fief or fee) from his lord in return for military service to his lord.

• King was at apex of feudal pyramid King

Tenant in Chief 1 Tenant in Chief 2 Tenant in Chief 3

Vassal 1 Vassal2 Vassal 3 Vassal 1 Vassal2 Vassal 3 Vassal 4 Vassal1Vassal 2

Vassal 1 Vassal2 Vassal 3 Vassal 1 Vassal2 Vassal 1Vassal 2 Vassal 3 Vassal 4

•Any number of vassals possible•Most member of military elite were both lords and vassals•Vassal could hold lands of multiple lords•Vassal could be at multiple levels. I.e. tenant in chief could hold some land as lower vassal

Tenant in chief 2

Feudalism II• Principal Rights and obligations

– Vassal owed lord military service, • Fixed number of knights (mounted horsemen)• Usually limited to 40 days per year• Scutage was monetary payment in lieu of military service

– Aids• Vassal was obligated to provide financial assistance (aids) to lord when

needed, such as when lord’s eldest son was knighted, when lord’s eldest daughter married, or to ransom the lord if he was taken captive.

– Relief• In theory, upon death of vassal, lord could choose new vassal

– Strong pressure, however, to choose dead vassal’s son or other heir• Heir of vassal was obligated to pay money (relief) to inherit and take

possession of fief, and thus become vassal.– Wardship

• If vassals heir was under 21, lord was “guardian” • Lord took possession of fief and reaped profits until heir 21

– Warranty. • Lord was required to defend vassal’s right to his fief.

– Most obligations not precisely defined before 13th century

Feudalism III• Feudalism and Law

– Each lord had a court for resolution of disputes between his vassals, and between the lord and his vassal

• Vassals collectively were the judges• “judgment of peers”

– Court could deprive vassal of fief, if vassal failed in his obligations

– Vassals were relieved of their obligations, if their lord failed in his obligations or if he demanded more than he was owed

– Lord was also supposed to consult his vassals in making important decisions

• Feudalism and Manorialism– Feudalism only describes relationships among military elite

• Perhaps 5% of population– Land actually farmed by peasants

• Often, but not necessarily organized in manors• Each manor had own court – property, contract, tort, etc.

Feudalism IV• King & Feudalism

– Under pure theory of feudalism, King had rights only in his position as feudal lord

• E.g. military service of his tenants in chief, scutage, aids, relief• No direct relationship with those who were not his direct tenants

– No right to tax or legislate with those who were not his tenants (e.g. not tenants in chief or agricultural tenants (peasants)

• His only court was the feudal court of his tenants in chief– No jurisdiction to hear cases involving other persons

» Except his agricultural tenants, for whom he had a manorial court

– Just as heir of vassal had no right to fief, heir of king had no right to kingdom

• But strong pressure to grant succession to heir (eldest son)– At least if militarily capable

– Becomes norm in 13th century, even if son an infant

Feudalism V• When was England feudal?

– Subject of great dispute• Some say never

– Some property always held without obligation of military service– King always had some rights over non-tenants

» Taxation, legislation, litigation

• Some say only 1066 to mid-12 century– Because little evidence of feudalism before Norman conquest– Obligation to provide military service obsolete by mid-12th century

• Some say 400-1660– Anglo-Saxons held land in return for military service– Lords exacted aids, wardships and reliefs until statute of 1660,

which abolished all feudal obligations

Feudalism VI• Forces undermining feudalism

– Order established after Norman Conquest meant that most wars were fought in France, not in England

• Traditional 40 days of feudal military service was useless in far away conflicts• So personal military service was commuted for money (scutage)

– Under Henry II, King established royal courts open to all free men• Protected property rights of vassals against lords• Made it difficult for lords to enforce vassals’ obligations through

dispossession

– Parliament authorized royal taxation• Not limited to traditional feudal obligations

– English kings always had power to make statutes• Powers augment that by rise of Parliament

– Uses & trusts – legal devices which avoided reliefs and wardships

• Result– Feudal rights and obligations became less important– Non-feudal rights and obligations imposed by Parliament and enforced in

royal courts became more important

Parliament I• Feudal lord supposed to consult with vassals before

making important decisions– Not just a matter of custom– Also issue of power, because vassals were armed and could

collectively overwhelm or resist lord

• English king, like any feudal lord, consulted with his vassals– As feudalism weakened, it became necessary for King to

consult not only with his vassals (the tenants in chief) but also sub-tenants and representatives of towns (boroughs)

• Tenants in chief lost power to coerce their tenants• With economic growth, towns became important source of revenue

– Parliament is name eventually given to this consultative body in 13th century

Parliament II• The Parliament of 1265

– Summoned by Simon de Montfort as part of rebellion against Henry III

• Note importance of rebellions

– Each county and select boroughs (towns) elected 2 representatives

• Those with freehold land (vassals not peasants) valued more than 40s per year (~$1500) could vote in county elections

• Model Parliament (1295)– Edward I wanted taxes for wars in Scotland and France– Summoned

• 49 “lords” or peers – barons, archbishops, bishops and abbots– Barons were tenants in chief with large land holdings

» Later, king could create barons at will

• 292 representatives of counties and boroughs• All deliberated together

Parliament III• 14th Century. Separation of House of Lords and

House of Commons • 17th Century. Emergence of political parties

– Whigs & Tories, predecessors of Liberals & Conservatives

– Labour founded in 20th century

• 18th century. Emergence of strong Prime Minister as de facto chief executive

• Appoints officials• Conducts war• King essentially figurehead• Prime Minister requires support of Parliament

– Although initially/formally chosen by king

Parliament IV• Key powers of Parliament

– Authorize taxation other than traditional feudal customs– Enact statutes

• Generally initiated and drafted by Parliament• Required royal assent to become law

– Statutes and taxation were generally bargains between King and Parliament

• King wanted taxes for war• Parliament wanted statutes to enhance welfare and limit royal power

• When possible, Kings tried to raise taxes and enact rules without Parliament– Parliament preserved and enhanced powers only by

threatening noncompliance or revolt• And actually rebelling

Parliament V• Parliament summoned by King

– No requirement that King summon at regular intervals

• If King had no need for new taxes, could rule for many years without summoning parliament

• Representation not proportional to population– Counties and boroughs not of equal population– New cities not represented at all– Problem especially acute after population shifts in

Industrial Revolution• Populous industrial towns had no borough representation• “Rotten boroughs” with few people had 2 representatives

– Lead to Reform Bill in 1832, but still not proportional

Constitutional Theory• Max Weber (1918) famously said that “a state is a

human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory”

• To understand English constitutional history, you must forget Weber– English state did not possess monopoly of legitimate force.

• English state possessed very little force– No standing army, no police

– Individuals had significant coercive capabilities• Feudal barons, armed citizenry

– Barons and/or people used their power to constrain state and thereby make constitutional law

• Rebellion and revolution were key engines of constitutional development

Important Rebellions in English History I • 1215 revolt against King John

– King John had increased feudal exactions (taxes) to finance unsuccessful war in France

– Rebellion culminated in Magna Carta

• 1263-65 rebellion against Henry III– Henry III favored foreign relatives over English

barons– Simon de Montfort summoned elected

Parliament to mount opposition to King

• English Civil War (1642-51)– Charles I tried

• To make Church of England more Catholic • To raise money without consent of Parliament

– Parliament • Waged war on Charles I, tried him for treason,

executed him• Set up “Commonwealth” government which ruled

for 11 years without a king

Magna Carta

Important Rebellions in English History II • Glorious Revolution (1688-89)

– James II• Established standing army• Promoted Catholics to high positions in

government• Decreed toleration for Catholics

– Group of nobles invited invasion by William Prince of Orange, James II fled

• William was married to Mary, James II’s daughter

• William was Protestant

– Parliament • Declared James II’s flight an abdication of the throne• Granted monarchy to William & Mary

– in return for “Bill of Rights”• Passed over James II’s son, because he was Catholic

James II

Judiciary and English Constitution• Judiciary has relatively small role in English Constitution

– Cannot declare statute unconstitutional• Because constitution is made by ordinary statutes• And because statutes can change common law• 1998 limited exception for European Convention on Human Rights

– But even then, statute continues in force despite “declaration of incompatibility”

– Court can declare official action illegal– if violates statute or common law

» because government officials must obey law– Wilkes v Wood (1763). £1000 judgment against royal official for

illegal search• Special problems in suing the King himself

– “sovereign immunity”– But not normally a problem, because can sue officials instead