Table of Contents
The Origin of Law
There are no minutes of the Royal Geographic Society or catacombs to show us how, for sure, law originated. We have no carbon-dating or even anything circumstantial to hook onto.
Language and the written word came a tad late for post-Neanderthal man's first diddlyings with "law".
Man had been about for 2.5 million years.
And where there is man, nowadays, there is some semblance of law.
Man, of course, and except for craniopagus Siamese twins, has a singular existence. Essentially we are alone with our joys, pains, wants, fears and death, in our private sanctuary of thought.
Anthropologists argue that man is a naturally social being, rare the one content with a solitary existence. Other agree that man is social but partly, if not entirely, out of necessity. Men need each other for protection, and thus the initial spark of law flew.
Alone, man needs no law. He can do as he pleases. But unless he is bigger, meaner, tougher, smarter and quicker than every other man he ever meets, his safety is not assured.
Sigmund Freud wrote:
"Men are not gentle, friendly creatures wishing for love, who simply defend themselves if they are attacked, but that a powerful measure of desire for aggression has to be reckoned as part of their instinctual endowment. The result is that their neighbour is to them not only a possible helper or sexual object, but also a temptation to them to gratify their aggressiveness on him, to exploit his capacity for work without recompense, to use him sexually without his consent, to seize his possessions, to humiliate him, to cause him pain, to torture and to kill him....
"This aggressive cruelty usually lies in wait for some provocation, or else it steps into the service of some other purpose, the aim of which might as well have been achieved by milder measures. In circumstances that favour it, when those forces in the mind which ordinarily inhibit it cease to operate, it also manifests itself spontaneously and reveals men as savage beasts to whom the thought of sparing their own kind is alien. Anyone who calls to mind the atrocities of the early migrations, of the invasion by the Huns or by the so-called Mongols under Jenghiz Khan and Tamurlane, of the sack of Jerusalem by the pious Crusaders, even indeed the horrors of the last world-war, will have to bow his head humbly before the truth of this view of man."
To see man without law – or what "society" would be like without law - one has to look no farther than the animal kingdom. The lion on the hunt is not looking for someone "his own size". He’s looking for the weakest. The lion doesn’t worry about fairness or inflicting as little pain as is necessary.
A riot is another a brief window into of anarchy or lawlessness, "the cruelty of unbridled, undisciplined feeling" is unleashed", of which war is an extended version.
The core societal unit for man is the family. For early man, that was the extent of his community.
With the recession of the ice from the last Ice Age, man ventured from his cave and their families extended their limits, and grew to include relatives, then friends.
Law produces order by the articulation of rules of conduct or prohibited behaviour, enforceable by some authority - developed from man's growing recognition that a certain state of affairs is unsafe for individuals or communities.
In his article, The State, Woodrow Wilson wrote:
"The patriarchal family being taken, then, as the original political unit of these races, we have a sufficiently clear picture of the infancy of government. First there is the family ruled by the father as king and priest. There is no majority for the sons so long as their father lives. They may marry and have children, but they can have no entirely separate and independent authority during their father’s life save such as he suffers them to exercise. All that they possess, their lives even and the lives of those dependent upon them, are at the disposal of this absolute father-sovereign. The family broadens in time into the House, the gens, and over this too the chiefest kinsman rules. There are common religious rites and observances which the gens regards as symbolic of its unity as a composite family; and heads of houses exercise high representative and probably certain imperative magisterial functions by virtue of their position. Houses at length unite into tribes; and the chieftain is still hedged about by the sanctity of common kinship with the tribesmen whom he rules. He is, in theory at least, the chief kinsman, the kinsman in authority. Finally, tribes unite, and the ancient state emerges, with its king, the father and priest of his people."
Wanton murder was prohibited (outside of war) because the prospect of sudden gratuitous death tends to create panic attacks.
Theft – formerly known simply as "appropriation by the strongest" - is prohibited because without it, property rights and trade are not impossible, and trade brings new goodies to everybody.
Marriage between persons of certain degrees of consanguinity (eg. incest) is prohibited because those relationships produce no variety and adaptation; thus, a species that cannot compete.
Anarchy is another natural occurrence which men quickly realized was both unsafe and unpredictable. It is tough to plan a Mesopotamian day trip around a busy schedule of chaos and riots.
Fast-forward thousands of years. Agricultural advances eliminated the need to relocate and man found he could sustain permanent settlement. The best agricultural lands attracted families. Man evolved his pack into little towns.
Rather than the unpredictable life of hunting, man preferred the predictable life which agriculture afforded. Along the coast of the Black Sea and in present-day Pakistan, settlements were created in 8,000-7,000 BC, such as Jericho, Catal Huyuk and Mehrgarh, the ruins of which are pictured below.
One author described the transformation as follows:
"The first of the great river civilizations of the ancient world ... arose in about 3500 BC, when the people of the fertile lands ... developed ... agriculture that could support large-scale population levels. Whereas their primitive hunter-gather ancestors needed hundreds of acres to support a family unit, the ... farmer needed less than twenty-five. More food meant more mouths could be fed. And, gradually, the owners of these mouths came to live a sedentary life based around the temple and the storehouse.
"Thus did civilization - from the Latin civitas, 'living in a city' begin. For the first time, human beings lived in an environment shaped entirely by their own hands, with the material resources to be spared the constant hunt and labour for food. City life demanded new, complex forms of organization. City life, by thronging together a mass of people, made cultural and technological innovation more likely."
Civilization is a group of people bound by culture, in a common territory, and which has attained a degree of complexity usually characterized by urban life. The larger the population, the safer the town; but the larger the town, the greater the attraction to marauders, and the greater need for even more citizens.
Blackstone spoke of a social contract:
"In the very act of associating together: namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole, or, in other words, that the community should guard the rights of each individual member, and that is (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection should be certainly extended to any."
This, the Sumerians and the Ethiopians perfected some 10,000 years BC.
Stay and be protected, or leave and: "Oh, and watch out for those roaming Akkadians and lions along the path."
As humans began to recognize the benefits of an absence of the chaos created by anarchy, they experimented law at the whim of a single person (rule of man).
What was important was the "rule of law" – that everyone, no matter how important or rich, be subject.
Law: to enforce order.
Law has therefore been defined as enforceable rules of order.
In a Canadian court case, Re: Manitoba Language Rights (Manitoba), published at 1985 1 SCR 721, the Court noted that:
"Law and order are indispensable elements of civilized life. The rule of law in this sense implies ... simply the existence of public order. The rule of law expresses a preference for law and order within a community rather than anarchy, warfare and constant strife."
Perhaps the theory was more eloquently put in 1989 by judge Wood of the British Columbia Supreme Court in R v Bridges, published at 48 CCC 3d 545:
"It is the rule of law which distinguishes civilized society from anarchy. Everything which we have today, and which we cherish in this free and democratic state, we have because of the rule of law. Freedom of religion and freedom of expression exist today because of the rule of law. Your right to hold the beliefs you do, to espouse those beliefs with the fervour which you do, and to attempt to persuade others to your point of view, exists only because of the rule of law. Without the rule of law there is only the rule of might. Without the rule of law the Canadian Charter of Rights and Freedoms, which some of you sought to invoke, would be nothing but another piece of parchment adrift in the timeless evolution of man's history.
"The rule of law exists in this society only because the overwhelming majority of citizens, irrespective of their different views on religion, morality or science, agree to be bound by the law. That agreement, which cannot be found recorded in any conventional sense, has survived the deepest and most profound conflicts of religion, morality and science. In that sense it might be thought that its strength is overwhelming and its future secure. But that is not the case at all, for the continued existence of that agreement is threatened by its own inherent fragility.
"Once our laws are flouted and orders of our courts treated with contempt the whole fabric of our freedom is destroyed. We can then only revert to conditions of the dark ages when the only law recognized was that of might. One law broken and the breach thereof ignored, is but an invitation to ignore further laws and this, if continued, can only result in the breakdown of the freedom under the law which we so greatly prize."
A New York State judgment of 2006 recognized that (Frens v. State 831 NYS 2d 347):
"Adherence to the rule of law is what guides us in our everyday social and legal interactions, prevents anarchy, and hold us together as a people."
The US Supreme Court, in 1965, in a case cited as Cox v. State of Louisiana 379 US 536 (Justice Goldberg):
"The existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy.
"The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations."
The world is a complicated place, with rules and regulations - law - for almost all that we do. It is overwhelming for adolescents upon their coming of age and the realization of the limits on their freedoms. Nor is it necessarily self-evident that those limits are essential to the comforts of their lives.
An excellent example of this was the Supreme Court of the United States 1905 case Jacobson v. Commonwealth of Massachusetts;
"The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.
"But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.
"There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members.
"Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.
"This court has more than once recognized it as a fundamental principle that persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned."
Circa 1904, the American Immigration Act prohibited alien anarchists which it defined as:
"Persons who believe in or advocate the overthrow by force or violence of the government of the United States or of all government or of all forms of law, or the assassination of public officials."
Ironically, anarchy, for all it’s bad press, simply and objectively refers to an absence of law which is not necessarily a bad thing, although utopian; a "social theory which regards the union of order with the absence of all direct government of man by man as the political ideal; absolute individual liberty."
It is a belief held by some that humans are evolving towards that, kept on the straight and narrow path through the "temporary" gate posts of law, and assisted by education, into persons with innate senses of right and wrong and no predilection to rape or plunder. Some point to the opening chapter of the Bible, Genesis, and where in the mythical garden of Eden, there was no distinction necessary between good and evil (or, for that matter, between genders).
Thus, no need for law. Aristotle:
"If all men were friends, there would be no need of justice."
And so the theoretical evolution of law, at its simplest, may be described as follows:
- Bad anarchy (lawlessness, chaos and gratuitous violence).
- Rule of Man (Conqueror, Kings, Queens and Emperors).
- Rule of Law (senates, parliaments and assemblies).
- The future – utopia? Good anarchy ? (no need for government)?
A corollary to all this is perhaps the most important point of all, one for which much ink and blood has been spilled since Man began to tinker with "government": Government must not ever make law(s) for the simple sake of control; it ought to never interfere with its citizens with a "law" unless there is a public policy reason to do so.
Timeline of Legal History
https://www.duhaime.org/LawMuseum/ID/133/Origin-of-Law
History of the Judiciary
An Ancient System
When you see a judge or magistrate sitting in court, you are actually looking at the result of 1,000 years of legal evolution.
It’s doubtful that anyone asked to design a justice system would choose to copy the English and Welsh model. It’s contradictory in places, and rather confusing. However, the judiciary is still changing and evolving to meet the needs of our society, and despite its oddities it is widely regarded as one of the best and most independent in the world.
A Real Ordeal
Justice for the Anglo-Saxons and even after the Norman invasion of 1066 was a combination of local and royal government. Local courts were presided over by a lord or one of his stewards. The King’s court – the Curia Regis – was, initially at least, presided over by the King himself.
Today, going on trial in an English and Welsh court is not exactly a comfortable experience. But it’s far better than trial by ordeal, used until almost the end of the 12th century to determine guilt or innocence in criminal cases.
Under this system, the accused would be forced to pick up a red hot bar of iron, pluck a stone out of a cauldron of boiling water, or something equally painful and dangerous.
If their hand had begun to heal after three days they were considered to have God on their side, thus proving their innocence. The number of ‘not guilty’ verdicts recorded by this system is not known.
Another, extremely popular ‘ordeal’ involved water; the accused would be tied up and thrown into a lake or other body of water. If innocent, he or she would sink.
There were two problems with this method, which was often used to try suspected witches: the accused was tied right thumb to left toe, left thumb to right toe, which made it almost impossible to sink; and opinion is divided as to whether those who did sink were fished out afterwards.
William II (1087-1100) eventually banned trial by ordeal – reportedly because 50 men accused of killing his deer had passed the test – and it was condemned by the Church in 1216.
Fighting for Freedom?
Criminal and civil disputes could also be decided by trial by combat, with a win held to prove either innocence or the right to whatever property was being disputed. Either side could employ their own champions, so the system wasn’t perhaps as fair as it might be.
Trial by combat gradually fell into disuse for civil cases, although it wasn’t until someone involved in a dispute in 1818 tried to insist on it that it was realised this was still, technically, an option. Trial by combat was quickly banned, forcing litigants to rely on more conventional routes.
The Earliest Judges
During this period judges gradually gained independence from the monarch and the government. The very first judges, back in the 12th century, were court officials who had particular experience in advising the King on the settlement of disputes. From that group evolved the justices in eyre, who possessed a mixed administrative and judicial jurisdiction.
The justices in eyre were not, to put it mildly, popular. In fact, they came to be regarded as instruments of oppression.
The seeds of the modern justice system were sown by Henry II (1154-1189), who established a jury of 12 local knights to settle disputes over the ownership of land. When Henry came to the throne, there were just 18 judges in the country – compared to more than 40,000 today.
In 1178, Henry II first chose five members of his personal household – two clergy and three lay – “to hear all the complaints of the realm and to do right”.
This, supervised by the King and “wise men” of the realm, was the origin of the Court of Common Pleas.
Eventually, a new permanent court, the Court of the King’s Bench, evolved, and judicial proceedings before the King came to be seen as separate from proceedings before the King’s Council.
Seeds of Change
In 1166, Henry issued a Declaration at the Assize of Clarendon (an assize was an early form of the King´s Council; the term later became the name for a sitting of a court).
The Assize of Clarendon ordered the remaining non-King’s Bench judges to travel the country – which was divided into different circuits – deciding cases.
To do this, they would use the laws made by the judges in Westminster, a change that meant many local customs were replaced by new national laws. These national laws applied to everyone and so were common to all. Even today, we know them as the ‘common law’.
The system of judges sitting in London while others travelled round the country became known as the ‘assizes system’. Incredibly, it survived until 1971.
Changes evolved slowly; even in the middle of the 14th century, under Edward III, there could be close collaboration between the Court of King’s Bench and the King’s Council. A third common law court of justice, the Court of Exchequer, eventually emerged as the financial business of the Royal Household was split off to a specialist group of officials.
The First Professional Judges and Magistrates
Martin de Pateshull, Archdeacon of Norfolk and Dean of St Paul’s, became a Justice of the bench in 1217. By the time he died in 1229 he was known as one of the finest lawyers in England; even 60 years after his death, his judgments were being searched for precedents.
Like Martin, many judges of this era were members of the clergy – although this did not necessarily mean they were parish priests, performing services, weddings and christenings. In an era when the church was rich and the King poor, joining the clergy was often just seen as a sensible means of support.
By the middle of the 13th century, knights had begun to join clerics on the bench. The first professional judges were appointed from the order of serjents-at-law. These were advocates who practised in the Court of Common Pleas. Lawrence de Brok, a serjeant, became a judge in 1268, starting the tradition, which lasted until 1875, of serjeants being the group from which judges were chosen.
This was important, because it meant that the judiciary now had real professional experience of the law before moving on to the bench.
Over the years, serjeants were overtaken in popularity by barristers and solicitors, and even today, these are the groups from which the judiciary is appointed.
Growth of Independence
During this era bribes and payments were common, but even so, in the middle of the 13th century the judiciary was openly accused of corruption.
In 1346, judges were obliged to swear that “they would in no way accept gift or reward from any party in litigation before them or give advice to any man, great or small, in any action to which the King was a party himself”.
Judicial salaries were also increased, possibly to make them less dependent on other forms of income.
This didn’t always help: in 1350 the Chief Justice of the King’s Bench, William de Thorpe, was sentenced to death for bribery (he was later pardoned, but demoted).
The First Magistrates’ Courts
Meanwhile, a new type of court began to evolve – that which we now recognise as the magistrates’ court. Magistrates’ courts hark back to the Anglo-Saxon moot court and the manorial court, but their official birth came in 1285, during the reign of Edward I, when ‘good and lawful men’ were commissioned to keep the King’s peace.
From that point, and continuing today, Justices of the Peace have undertaken the majority of the judicial work carried out in England and Wales (today, about 95 per cent of criminal cases are dealt with by magistrates).
Until the introduction of our modern system of councils in the 19th century, JPs also governed the country at a local level.
Problems With Politics
The 14th century saw members of the judiciary still involved in politics to some extent – for example, for ten years, Edward III’s Chancellors were common-law judges.
In 1387, six judges advised Richard II that a parliamentary commission set up to limit his own powers was ‘invalid and traitorous’. They were all impeached, convicted and sentenced to death, although only one was actually executed; the rest were banished to Ireland.
Unsurprisingly, for two centuries after this the judiciary kept almost entirely away from politics.
Moving Away From Politics
During the turbulent 15th century – the Wars of the Roses – judges stood apart from both the Houses of Lancaster and York, and were largely unaffected by the changes in government.
From 1540 onwards, Henry VIII had no judges in his Privy Council. His son Edward VI and daughter Mary I did include judges on their own Privy Councils, but Elizabeth I excluded them for 40 years.
In 1553, Mary I also removed three judges from office, but Elizabeth I made no changes on assuming the throne – although she did remove one later during her reign. The judiciary were becoming separate from the executive. Although it was generally accepted at this time that even the King was subject to the laws of the land, the Reformation added to the sovereign’s powers; the state had taken over the Church’s privilege to define the laws of God, and had removed the influence of the Pope as the ultimate arbiter on Earth.
So the King remained principal law-maker, with the judges as interpreters of that law; a potentially uneasy relationship.
Meanwhile, by the Elizabethan and early Stuart periods, assize judges on the six circuits in England were mainly dealing with the most serious crimes not normally handled by the local Quarter Sessions, run by JPs.
They also took a role in local administration, although this was much reduced following the English Civil War.
A Risky Business
On the face of it, the judiciary was becoming steadily more independent: in 1642, Charles I was forced to agree to the appointment of judges “during good behaviour”, and their salaries were raised from under £200 to £1,000 a year in 1645.
On the restoration of the monarchy in 1660, all judges – and there were just 12 at this point, four in each of the common law courts – remained in office.
But in 1668 the system of appointments “during pleasure” was reintroduced, and in the last 11 years of his reign Charles II sacked 11 of his judges. The next king, Charles’s brother James II, sacked 12 in just three years.
This was bound to affect the quality of the judiciary: judges knew very well their jobs were at risk if the sovereign did not like their judgments.
A New Independence…
The day after the House of Commons resolved that James II had abdicated, a parliamentary committee drew up Heads of Grievances to be presented to the new King, William III.
This document contained, among other things, items on paying judges’ salaries out of public funds, and preventing judges being removed or suspended from office, “unless by due cause of law”. These grievances eventually appeared in much the same form in the Act of Settlement (1701) and have remained in place ever since.
When Common Law Failed
Mirroring developments in the role and independence of judges were changes to the avenues of redress open to aggrieved parties. The common law system was an improvement on what had gone before, but it was still slow, highly technical – making procedural mistakes that could ruin a case all too likely – and vulnerable to corruption, especially when juries were used.
Fortunately, those who felt they had been failed by the common law system could still petition the King with their grievances.
Gradually, these cases were delegated to the King’s council, and eventually to one individual – the Lord Chancellor.
Because of this, the Lord Chancellor came to be known as the ‘King’s conscience’, and began to preside over his own court, the Court of Chancery. This dealt only with civil disputes, for example property and contract cases, and applied the law of equity – even-handedness or fairness.
By the time of Henry VIII, the Court of Chancery had become a rival to the common law courts.
But as the years went by, the Court of Chancery began to be known for the same problems it had been set up to combat: expense and delay. Also, the Lord Chancellor was free to give whatever ruling he liked in a Chancery court, unbound by the law – which made it almost impossible for lawyers to advise their clients correctly.
Changes to the System
It was not until 1830 that there was any change to the nearly 300-year-old assize courts. By the Law Terms Act of that year, the Court of Great Sessions was abolished and the Welsh counties and Chester were brought into the general circuit system. Shortly afterwards, the new Central Criminal Court was set up, unifying the administration of justice in London and surrounding areas.
In 1856, judges of the Central Criminal Court were also given the right to hear cases outside the court’s ordinary jurisdiction, to ensure a fair trial where local prejudice existed or when it could offer an early trial and so avoid the delay involved in waiting for the next assizes.
County courts, dealing with civil cases, were created under the County Courts Act 1846.
The Judicature Act 1873 and After
In 1873, Parliament passed the Judicature Act which merged common law and equity. Although one of the Divisions of the High Court is still called Chancery, all courts could now administer both equity and common law – with equity to reign supreme in any dispute.
The same Act established the High Court and the Court of Appeal and provided a right of appeal in civil cases to the Court of Appeal. Criminal appeal rights remained limited until the establishment of a Court of Criminal Appeal under the Criminal Appeal Act 1907.
The Court of Criminal Appeal sat for nearly 60 years, until its existence as a separate body was ended by the Criminal Appeal Act 1966. Its jurisdiction passed to the Court of Appeal.
The Crown Court is Created
Crown Courts as we know them today were not actually established until 1956, and then only in Liverpool and Manchester. These courts also took over the quarter sessions work in their cities.
The Royal Commission on Assizes and Quarter Sessions, 1966-1969, led to the abolition of courts of assize and quarter sessions and the establishment of a new Crown Court to deal with business from both, under the terms of the Courts Act 1971.
…But Still Not Separate
Hundreds of years of evolution may have resulted in an independent judiciary – but that doesn’t mean they were entirely separated from government. Chief Justice Lord Mansfield was in the Cabinet between 1757 and 1765, for example and more recently Lord Cave was Home Secretary for a couple of months at the end of the First World War when he was also a serving Lord of Appeal in Ordinary, or Law Lord.
And until 2006, the Lord Chancellor was part of the executive, the legislature and the judiciary. The Lord Chancellor’s role changed drastically on April 3 2006 as a result of the Constitutional Reform Act 2005. This latest major change to affect the judiciary has been described as the most significant since Magna Carta. The Act establishes the Lord Chief Justice as President of the Courts of England and Wales and Head of its Judiciary, a role previously performed by the Lord Chancellor. For the first time an express statutory duty is placed on the Lord Chancellor and other Ministers of the Crown to protect the independence of the judiciary. For the first time in its 1,000-year history, the judiciary is officially recognised as a fully independent branch of the government.
Bibliography
Geoffrey Rivlin, Understanding the Law, Oxford, 2004
Theodore FT Plucknett, A Concise History of the Common Law, Butterworth & Co, 1956
Judy Hodgson (ed), The English Legal Heritage, Oyez Publishing, 1979
On 26 July 2007 the House of Lords’ Select Committee on the Constitution published a report, Relations between the executive, the judiciary and Parliament. The judiciary’s response was sent to the Committee on 18 October 2007.
https://www.judiciary.uk/about-the-judiciary/history-of-the-judiciary/
The Anthropology of Law
In many Western contexts today, the popular understanding of law is fairly narrow and state-oriented: many Westerners would define law as a binding set of rules that are enacted, supported, and enforced by a centralized state. Anthropologists, however, generally have a much broader view of what counts as “law” or falls under the umbrella of the “legal.” As we shall see, some of the earliest anthropological studies of law sought to understand how social order was kept in the absence of a state. As with other topics in anthropology, anthropologists have seen no shortage of debate about what does, or should, constitute our understanding of law and the legal. Of course, state sanctioned rules are part of what anthropologists consider under the umbrella of law, but anthropologists of law also consider various other means of establishing or maintaining social order, social norms and custom, and processes of handling disputes as part of law.
Most important, perhaps, is the fact that anthropologists view law as a cultural construction—law is developed in cultural contexts, and must be understood as part of culture, not distinct from culture or hovering over it to be drawn on at will. Law is always created in cultural and historical contexts. The anthropologist Lawrence Rosen, who is also trained as a lawyer, writes in his book Law as Culture: An Invitation that “Law does not exist in isolation. To understand how a culture is put together and operates...one cannot fail to consider law; to consider law, one cannot fail to see it as part of culture” (2006: 5). Because law is very much a part of culture, studying law can enhance our general understanding of culture. In much of his work, Rosen has argued that legal reasoning is culturally located, and that processes of legal reasoning can teach us a great deal about what cultures value. Law teaches about the standards and expectations for behavior that communities hold, what constitutes an offense against the group, another person, or perhaps the supernatural, and what kind of punishment or sanction and offense deserves, and many other things. An anthropological approach to the study law as part of culture can similarly shed light on how norms and values change over time. Take, for example, the change in state and federal laws regarding same-sex marriage in Europe, South Africa, and the Americas since 2000 until the present.
https://www.eolss.net/sample-chapters/c04/E6-20D-68-18.pdf
Legal Anthropology - What is law?
Legal Anthropology provides a definition of law which differs from that found within modern legal systems. Hoebel (1954) offered the following definition of law: “A social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting”
Maine argued that human societies passing through three basic stages of legal development, from a group presided over by a senior agnate, through stages of territorial development and culminating in an elite forming normative laws of society, stating that “what the juristical oligarchy now claims is to monopolize the knowledge of the laws, to have the exclusive possession of the principles by which quarrels are decided”
This evolutionary approach, as has been stated, was subsequently replaced within the anthropological discourse by the need to examine the manifestations of law's societal function. As according to Hoebel, law has four functions:
1) identify socially acceptable lines of behaviour for inclusion in culture.
2) To allocate authority and who may legitimately apply force.
3) To settle trouble cases.
4) To redefine relationships as the concepts of life change.
Legal theorist H. L. A. Hart, however, stated that law is a body of rules, and is a union of two sets of rules:
- rules on conduct ("primary rules")
- rules about recognizing, changing, applying, and adjudicating on rules on conduct ("secondary rules")
Within modern English Theory, law is a discrete and specialized topic. Predominantly positivist in character, it is closely linked to notions of a rule-making body, the judiciary and enforcement agencies. The centralized state organisation and isolates are essentials to the attributes of rules, courts and sanctions. To learn more on this view, see Hobbes. 1651 Leviathan, part 2, chapter 26 or Salmond, J. 1902 Jurisprudence.
However, this view of law is not applicable everywhere. There are many acephelous societies around the world where the above control mechanisms are absent. There are no conceptualized and isolated set of normative rules – these are instead embodied in everyday life. Even when there may be a discrete set of legal norms, these are not treated similarly to the English Legal System's unequivocal power and unchallenged pre-eminence. Shamans, fighting and supernatural means are all mechanisms of superimposing rules within other societies. For example, within Rasmussen’s work of Across Arctic America (1927) he recounts Eskimo nith[check spelling]-songs being used as a public reprimand by expressing the wrongdoing of someone guilty.
Thus, instead of focusing upon the explicit manifestations of law, legal anthropologists have taken to examining the functions of law and how it is expressed. A view expressed by Leopold Pospisil and encapsulated by Bronislaw Malinowski:
“In such primitive communities I personally believe that law ought to be defined by function and not by form, that is we ought to see what are the arrangements, the sociological realities, the cultural mechanisms which act for the enforcement of law”
Thus, law has been studied in ways that may be categorized by as:
1) prescriptive rules
2) observable regularities
3) Instances of dispute.
Processual Paradigm: Order & Conflict
Order and regulatory behaviour are required if social life is to be maintained. The scale and shade of this behaviour depends on the values and beliefs held by a society deriving from implicit understandings of the norm developed through socialization. There are socially constructed norms with varying degrees of explicitness and levels of order. Conflict may not be interpreted as an extreme pathological event but as a regulatory acting force.
This processual understanding of conflict and dispute became apparent and subsequently heavily theorized upon by the anthropological discipline within the latter half of the nineteenth century as a gateway to the law and order of a society. Disputes have come to be recognised as necessary and constructive over pathological whilst the stated rules of law only explain some aspects of control and compliance. The context and interactions of a dispute are more informative about a culture than the rules.
https://en.wikipedia.org/wiki/Legal_anthropology
Law in the Ancient World
The legal systems in place throughout the world have origins that date back to ancient societies. Civil law has its foundation in ancient Roman law, and this type of legal system is based on complying with enacted laws. Common law originated with England's monarchy, and this type of legal system is based on precedent. This means that previous cases and judicial opinions determine how new cases are resolved. Studying ancient legal systems can help you understand how and why current work the way they do.
Mesopotamia
King Hammurabi was the first king of Babylon, and he was the ruler who was responsible for conquering Mesopotamia and creating the first Babylonian Empire. Hammurabi was known for his fair laws and style of ruling. He wanted his people to obey his laws out of respect, not out of fear. This ruler managed his court by clearly outlining the laws so that all of the people knew them. Hammurabi's laws are called the Code of Hammurabi. The Code of Hammurabi includes a wide range of statutes covering everything from family relationships to contracts to inheritances to crimes and punishments. For example, violent crimes often had penalties that equaled the crime; if you cut someone's hand off, for instance, you would have yours cut off, too. The king enforced his laws by holding everyone accountable equally, without regard for status or income. Every law had a clear punishment attached to it, and penalties were carried out consistently.
The Unusual Government of Ancient Mesopotamia
- Government: In both Sumer and Babylon, there was an unusual form of government that came pretty close to an early form of democracy. There was a king and nobles who made the laws and declared war and decided how to honor the gods. Then there was an assembly of wise men, elected by the people, who could overrule the king and say, this is not a good law, get rid of it; or the assembly might say we don't want to go to war, so stop it. Each city-state had its own king and its own assembly. Government was quite different, however, in ancient Assyria.
- Sumerian Laws: The Sumerians did not, to our knowledge, write down their laws. The king passed a law, and everyone was expected to learn it and obey it. If you broke the law in Sumer, you would be punished. The punishment was set for each infraction. If you stole something, you were punished according to what you stole. If you offended the gods, you were punished. Everyone knew what the punishment was so there was no escape by saying you didn't know. The thing is, the Sumerians were organized into city-states. Each city-state had it own royal family and its own military and its own king and assembly of people. So a king in one city-state might pass a law, and pretty soon, if it was a good law and stuck around, all the city-states adopted the same law. So, although they were separate city-states and fought each other all the time, they also had pretty much the same laws and punishments, culture, urban life-style, language, and religion. People were free to move from city to city for trade and also to live.
- Babylonian Laws: As the Sumerian city-states weakened, the city-state of Babylon took over. For a while, ancient Babylon ruled the whole Mesopotamian region in the south. The government and laws of Babylon were like the government and laws of Sumer. There was a king and other nobles who ruled with the help of an assembly of the people. The laws of Babylon were taken from the laws of Sumer. Everyone was expected to know and obey the laws. To ensure that the laws were followed by everyone, one of the kings of Babylon, King Hammurabi, had the laws written down on stone tablets so that, whether they were rich or poor, everyone would be treated equally under the law. Most of these laws were taken from Sumerian law.
- The Assembly in ancient Sumer and Babylon: In both ancient Sumer and ancient Babylon, kings were not gods. Kings were mortals, just like the common man. In this, at least, all men were equal in these ancient civilizations. The kings were just as eager and just as responsible for keeping the gods happy as were the common people. So, it made sense to these early people that a Council of Elders, an assembly of wise men (called the Assembly), should be elected so that the people would have someone to check with, to make sure that what they were planning to do would not anger the gods. The king sought approval for his actions from this assembly, just like everyone else. The assembly might say to a king, 'No king, you can't do that. That would anger the gods." And the king would not do that. Even the gods had to seek the approval of the assembly. The gods didn't actually appear in front of the assembly (and wouldn't that be a neat trick!) but the assembly did discuss how the gods should behave and arrange themselves in the heavens - which god could marry whom and who had what job.
-
Assyrian Laws: Things were quite different in ancient Assyria. Assyria was
a powerful military state in northern Mesopotamia (in what is today
northern Iraq). The Assyrian government was led by a king. The king
ruled as the earthly representative of the god Ashur, the most
powerful god to the ancient Assyrians. Military officers were in
charge of local government. The king had other advisers as well,
pulled from the nobles. The most important advisor was the chief of
staff. The chief of staff decided who could talk to the king on any
one day, and who couldn't. Scribes were the only people who could
read or write. Like all the ancient Mesopotamians, the Assyrians
liked to keep lists and write things down. At one time, the Assyrian
Empire stretched all the way from Mesopotamia to Egypt. But in
ancient Assyria, there was no assembly that could overrule the king.
The king's word was law.
https://mesopotamia.mrdonn.org/government.html
- Importance of the Ancient Mesopotamian Code of Hammurabi in Order and Justice
- Hammurabi: Ancient History Encyclopedia
- About Hammurabi
Ancient Greece
The judicial system in place in America has roots in the ancient Greek legal system. In ancient Greece, there was no need for law school because lawyers were not a part of the legal system. Instead of having a lawyer representing each side in a case, people argued their cases. Some people with enough means may have hired speechwriters to help them figure out what to say when arguing a case. Ancient Greeks also did not use judges to decide verdicts. Instead, they used large juries, sometimes with as many as 500 jurors. Cases were not drawn out over days or weeks in ancient Greece: The Greeks monitored the proceedings strictly with a timer to make sure that the parties presented their positions and the jury gave its verdict by the end of one day.
Law Enforcement in Ancient Greece
Victor Bers & Adriaan Lanni
Courtroom Procedure
With the preliminary procedures out of the way, the litigants proceeded to trial before a jury. Litigants were evidently expected to deliver their own speeches in court, though they could donate some of their speaking time to a co-speaker, often a friend or relative (sunegoros, see the Glossary entry). Speakers could obtain the services of speech-writers, or logographoi (see the Glossary entry), to help them prepare their case, but orators never mention their logographos and generally pretend to be speaking extemporaneously in court. In fact, speakers often boast of their inexperience in public speaking and ignorance of the lawcourts, perhaps to head off an accusation of sycophancy (sukophantai see the Glossary entry). Specialized legal terminology never developed in Athens, and forensic speeches are dramatic recreations of the events told in laymen’s terms. Presenting a case pro se was not as daunting in classical Athens as it may at first appear; most Athenians probably acquired some familiarity with the workings of the lawcourts, both from serving as jurors and by attending trials, which took place in or near the shopping district and served as a form of popular entertainment.
Each litigant was allotted a fixed amount of time to present his case. Some private cases were completed in less than an hour, and no trial lasted longer than a day. Speaking time was measured by means of a water-clock, a simple device whereby a set amount of water flowed through a hole in one pot into a second pot placed below it. A plug was used to stop the water during the reading of laws and evidence. A fragment of one water-clock survives. Unlike a modern trial, in which evidence is presented in a highly fragmented form and later synthesized into a coherent case by the attorneys’ summation, Athenian litigants provided a largely uninterrupted narrative of their case punctuated with the reading of evidence; in an Athenian court the evidence did not make the case but reinforced the claims and arguments presented in the litigant’s speech. Although a magistrate chosen by lot presided over each popular court, he did not interrupt the speaker for introducing irrelevant material or permit anyone else to raise other legal objections, and did not even instruct the jury as to the laws.
The laws were inscribed on large stone blocks erected in various public areas of Athens. Beginning at the end of the fifth century copies were kept in a public building, but it is unclear whether this archive was sufficiently organized to serve as a user-friendly source of law for potential disputants. Litigants were responsible for finding and quoting any laws that helped their case (presumably speech-writers assisted in this task), but there was no obligation to explain the relevant laws, and in fact some speeches do not cite any laws at all. There was no formal mechanism to prevent a speaker from misrepresenting the laws, though knowledgeable members of the jury and the crowd could heckle orators whose speeches were misleading. The treatment of law in our surviving speeches is consistent with Aristotle’s characterization of laws as a form of evidence, similar to contracts and witness testimony, rather than a decisive guide to a verdict. There was no system of precedent through case-law since there were no Athenian law reports. Verdicts were not regularly recorded and in any case the jury did not reveal the reasons for its decision. Nevertheless, speakers do at times refer to past cases in their arguments, though the jury was not bound to follow such “precedents.”
In the fifth century, witnesses testified in person and could be cross-examined, while beginning in the early fourth century litigants drafted a statement and the witness stepped forward during the trial simply to swear to the statement’s veracity. Women were not permitted to serve as witnesses, and slave testimony could be introduced only if the evidence was obtained under torture. A slave’s powerful fear of his master would normally prevent him from testifying against him, hence his testimony would need to be “improved” by an even stronger wish to end the physical pain to which the examiners subjected him. But our sources do not clearly indicate whether slaves’ testimony was actually ever used in a trial. Some scholars believe that the whole business of making one’s slaves available for questioning under torture or demanding another man do so was just a rhetorical ploy.
We have been using the terms “juror/jurors” as a translation for the Greek dikastes/dikastai to refer to the audience of these forensic speeches, but others prefer the translation “judge/judges.” Neither English word is entirely satisfactory, since these men performed functions similar to those both of a modern judge and a modern jury. This was a system with no professional judges to regulate what the jury heard, to instruct it in the relevant law, and to separate matters of fact from matters of law. There was no provision for appeal from the verdict; the Athenian jury wielded very great power indeed. Though we may suspect lawcourt speakers of flattering the jurors at the expense of the truth, the speaker in Demosthenes 57 is not exaggerating very much when he tells them: “I have turned to you, men of Athens, for I see that the courts hold greater authority, not only than the voters of the deme… but even than the Council and the Assembly—and rightly so, since your decisions are in all matters the most just.” (Dem. 57.56)
Jurors not only ruled in routine cases but also decided whether a law or decree passed by the Assembly was constitutional; most remarkably, after 403 BCE the Assembly could not, on its own, make a new law, for which the technical expression, rigorously maintained in practice, was nomos, but only a psephisma, decree. Any new laws, strictly defined, required ratification by a group called the nomothetai, literally “layers down of the law.” But though the task was legislative, the nomothetai were drawn from the 6,000 men who had taken the juror’s oath and were thereby entitled to present themselves for jury service. These remarkably broad powers make it important to know who served on juries, how they were assigned to particular cases, and how they went about their business. (See also the article on Legislation.)
Speakers almost always implied that the jurors all shared a large body of knowledge and opinion; and they often address the jury as if it were a single body that sat in judgment over many decades. Thus Aeschines can say to the jurors hearing a case fifty years after the fact, “You condemned the sophist [sic] Socrates…” (Aeschines 1.173). But of course the jury panels were not so many identical slices of the population. What were they actually like? How did they compare with the rest of the population?
As in most aspects of Athenian civic life, citizen males enjoyed a near monopoly, but jurors were a subset of that privileged group. Whereas a man could speak in court and vote in the Assembly when he was eighteen, he had to wait until his thirtieth birthday to take the juryman’s oath and his place among an annual panel of 6,000 men. The twelve-year difference in minimum age may look trivial, but must have counted for much in a society where the average life expectancy was about twenty-five. Moreover, the average juror might have been a good deal older than thirty: older men are more likely to have time on their hands in an economy where most work made heavy physical demands.
The economic character of the jury panel cannot be known for sure, and is likely to have varied from year to year and season to season; still, there are good reasons to believe that the jurors tended to be poor enough to find the small fee, a fraction of what a laborer could make in a day, an inducement to serve. And though we lack the evidence to be sure, the jury panels hearing most cases were likely to be comprised of men poorer and far less famous than the men on whom they were sitting in judgment.
Far from evading jury service, more jurors presented themselves for service than could be seated on any one of the 150 to 200 days the courts were in session each year. This was so, even though the jury panels were, at least in the fourth century, outlandishly large by our standards. The smallest panel was 201, and some important cases were assigned to much larger groups: 1001, 1501, and 2001. To judge from the Wasps, Aristophanes’ comedy about a jury addict, a fifth-century juror would simply need to arrive early enough to be sure of a seat that day. During the fourth century an elaborate system of multiply random selection was introduced, using wood or bronze tickets that each juror brought with him, a sort of slot machine with black and white balls, and wands color-coded to match the painted lintels at the entrances to various courtrooms. The procedure, which we know in great detail from The Constitution of Athens, not only determined which jurors would serve that day, but which cases an individual juror would hear, and even which jurors would perform certain simple, but indispensable, tasks, such as minding the water-clock that timed the speeches and handing jurors a coin in payment for the day’s service. The procedure was probably meant, in the first instance, to prevent litigants from bribing or otherwise corrupting the jurors, but a likely side effect may have been to turn this step into a ceremony that would impress litigants, jurors, and bystanders with the seriousness of the occasion. Drawing lots was regarded as quintessentially democratic, and those Athenians prone to see a divine hand as lying behind a random process might have seen the sortition as providing an arena for the gods to do their work. Given the wide discretion and great power of the jury, this system probably did much to enhance the prestige of the judicial process as a whole.
Consistent with the fiction that the jury was an unchanging group of men, there was no process like our voir dire, meant to exclude from the jury those with some knowledge of the case or acquaintance with the principals, their associates, or the men in court to speak on behalf of either side. On the contrary, Athenian litigants at times encouraged jurors to base their decision on preexisting knowledge. In his prosecution of Timarchus, Aeschines tells the jurors:
“Let nothing be more credible in your eyes than your own knowledge and conviction regarding this man Timarchus…. Look at the case in the light, not of the present moment, but of the time that is past. For the words spoken before today about Timarchus and his practices were said because they were true; but what will be said today will be spoken because of the trial, and with intent to deceive you. Give, therefore, the verdict that is demanded by the longer time, and the truth, and your own knowledge.” (Aeschin. 1. 93).
Speakers routinely refer to the jurors’ opinion of the litigants or their supporters, even when the supposedly notorious persons were not prominent, say leading politicians, but ordinary persons, too obscure to be known by many jurors, if any at all. Court rhetoric often pretended that the city was not a large area with a population in the hundreds of thousands, but a small village.
In our courtrooms one normally hears one voice at a time; judges gavel down any unauthorized voice, and jurors in particular are cowed into profound silence. Perhaps because the jurymen were perfectly conscious of their collective might and the presiding magistrate had no right to expel or punish a noisy juror, the Athenian jury panels were often raucous, and it is very likely that the crowd standing around at many trials augmented the hubbub of shouts, murmurs, and catcalls. Speakers often plead with the jurors to abstain from heckling, especially when they expect their words will provoke anger: “Now please, gentlemen of the jury, by Zeus and the other gods, let no one shout, let no one get angry at what I am about to say” (Demosthenes 57.50). Enemies of the democracy, notably Plato, denounced the tumult of the courtroom and suggested that it was symptomatic of the poor quality of justice meted out by the democratic courts. Yet it must be said that in the absence of professional guidance, jurors might have served justice by communicating to each other what they knew of the laws, the credibility of certain witnesses, or even their sense of what constituted a reasonable argument.
https://www.stoa.org/demos/article_intro_legal_system@page=5&greekEncoding=UnicodeC.html
Ancient Rome
Ancient Rome contributed significantly to the legal systems still in place in many countries today. The foundation of Roman law was the Twelve Tablets, which contained the established set of laws. Some laws included in the Twelve Tablets include a requirement to appear in court if you are called upon, the punishment of death for lying in court, and a prohibition against holding business or political meetings at night. This system of Roman law was in place for more than 1,500 years. Emperor Justinian was responsible for creating the Code of Justinian, which was a compilation of Roman laws that is the foundation of the civil law in many modern countries.
Today, when we think of a court, we typically imagine a structure built in a style to impress passers-by, containing one or more rooms in which various officials move through a prescribed set of procedures, to either resolve a dispute between individuals or determine a penalty against an offender. Because the modern legal system used in most western countries derives from ancient Rome, it is not entirely wrong to assume that the ancient Roman courts were much the same as their modern descendants. However, differences exist—great enough in number and importance that all students of the ancient world must take care when drawing conclusions without solid evidence to support them.
First, it is important to recognize that the Roman courts dealt with exceptional, rather than normal, events within Roman society. It was not normal to go to court. Compare to modern day—what percentage of the population takes a dispute to court or is charged with a crime? How many people have seen the inside of their local courthouse as participants? A small percentage, of course. Most people move through their lives obeying the laws and avoiding conflict with others by means of careful scrutiny of legally binding documents such as contracts, perhaps even bringing in experts for advice before they undertake important transactions such as purchasing a house. If a difficult dispute with others emerges, modern legal systems have various methods of conflict resolution, such as arbitration and mediation, for us to utilize before resorting to a formal court hearing.
Compared to modern day, it is likely that an even smaller percentage of those living within Roman territory found themselves in a court within their lifetime. Why? First, a sizable portion of the inhabitants of the Roman world had either no (slaves) or limited (non-Roman citizens with various degrees of legal rights, such as Latin or Italian rights) access to the Roman legal system. Second, within Roman society the community played a far greater role in regulating the behaviour of its members than is seen in modern western cultures. The institution of patronage was central in protecting the interests of those wronged. The limited amount of policing found throughout the ancient world suggests that other such forces were at work. Third, Roman society was extremely unequal. There were wealthy and poor, there were citizens and non-citizens, there were free and slave. No doubt this inequality carried over into legal matters, and people likely accepted, far more easily than in modern western cultures, with their ideas of equality before the law, that sometimes individuals were treated unfairly, perhaps even suffering under an illegal act, because of their inability to protect themselves adequately. That was life.
In addition, even those whose status within Roman society would enable them to take matters to court met with certain disincentives. Courtroom practice allowed advocates a free hand in attacking the character of the opposing party as part of the case. These attacks could be extremely personal in nature and even entirely untrue, there was no requirement of proof, but in a society in which one’s public persona was of extreme importance and value, the fact that a litigant thereby exposed himself or herself to attacks that could range from jokes about hair loss to accusations of incest or worse, no doubt encouraged many to ponder how badly they wanted the matter resolved in open court.
Other options for resolution existed. If the two aggrieved parties had a common acquaintance or friend, perhaps the same patron, they could ask him or her to mediate or arbitrate the disagreement. Or they could take a more formal route and ask for the person to arbitrate their dispute ex compromissio. This method bound the parties to abide by the decision of the arbitrator by creating a binding contract between them. None of these methods of resolution involved the courts. It was only in situations when these options were either exhausted or rejected that matters found their way to the courts.
https://oxfordre.com/classics/view/10.1093/acrefore/9780199381135.001.0001/acrefore-9780199381135-e-8071
- Law and Order (PDF)
Ancient China
China holds the top honor as the country with the longest continuous legal history. Chinese law is influenced by ancient Confucian codes of conduct, which focus on people's individual responsibility to be virtuous without having the law dictate their actions. The Xia Dynasty was the first of China's dynasties, but it was not until many hundreds of years later that the ruler of the Qin Dynasty established the first centralized feudal government. This type of government had a single ruler, who maintained control with military force. Many dynasties followed until 1911 when the final dynasty was overthrown. The Republic of China was established at that time.
Ancient India & China
Ancient India and China represent distinct traditions of law, and had historically independent schools of legal theory and practice. The Arthashastra, dating from the 400 BC, and the Manusmriti from 100 BCE were influential treatises in India, texts that were considered authoritative legal guidance. Manu’s central philosophy was tolerance and pluralism, and was cited across South East Asia.
During the Muslim conquests in the Indian subcontinent, sharia was established by the Muslim sultanates and empires, most notably Mughal Empire’s Fatawa-e-Alamgiri, compiled by emperor Aurangzeb and various scholars of Islam.[8][9] After British colonialism, Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire. Malaysia, Brunei, Singapore and Hong Kong also adopted the common law.
Eastern Asia
The eastern Asia legal tradition reflects a unique blend of secular and religious influences. Japan was the first country to begin modernising its legal system along western lines, by importing bits of the French, but mostly the German Civil Code. This partly reflected Germany’s status as a rising power in the late nineteenth century. Similarly, traditional Chinese law gave way to westernisation towards the final years of the Qing dynasty in the form of six private law codes based mainly on the Japanese model of German law. Today Taiwanese law retains the closest affinity to the codifications from that period, because of the split between Chiang Kai-shek’s nationalists, who fled there, and Mao Zedong’s communists who won control of the mainland in 1949.
The current legal infrastructure in the People’s Republic of China was heavily influenced by soviet Socialist law, which essentially inflates administrative law at the expense of private law rights. Today, however, because of rapid industrialisation China has been reforming, at least in terms of economic (if not social and political) rights. A new contract code in 1999 represented a turn away from administrative domination. Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organization.
https://brewminate.com/a-brief-history-of-law-since-the-ancient-world/
London’s Central Criminal Court, 1674 to 1913
How Trials were Conducted at the Old Bailey
English criminal trials from the late seventeenth to the early twentieth centuries were very different from those of today. Trials were quick, lawyers were rarely present, and prosecutors, judges, and jurors exercised considerable discretion in how they interpreted the law. There were some changes to trial procedures during the eighteenth century, and change quickened significantly during the 1820s. Several nineteenth-century reforms improved conditions for the defence, but defendants still operated under severe disadvantages.
Contents of this Article
- Introduction
- Initial Accusations
- Drawing up the Charges
- The Role of the Grand Jury
- The Defendant's Plea
- The Trial
- The Role of Lawyers
- The Role of Judges
- The Verdict and Sentence
- Appeal and Review
- Conclusion
- Introductory Reading
Introduction
'James Macleane, the Gentleman Highwayman at the Bar' (1750). © Lewis
Walpole Library, Yale University
The jury trial, which can be traced back to the middle ages, is often celebrated as the cornerstone of British liberties, but trials in this period contained few of the protections against wrongful convictions which exist today. Trials were quick, with lawyers rarely present (until the early nineteenth century), and, since there was not a fully developed law of evidence, prosecutors, judges, and jurors had more power and flexibility than they do today. Basically the trial involved a confrontation between the prosecutor, normally the victim of the crime, and the defendant, in which the defendant was expected to explain away the evidence presented against them (witnesses also testified on both sides). Although contemporaries thought these procedures provided reasonable means of determining guilt and innocence, from a modern point of view they appear to substantially disadvantage the defence.
Trial procedures were continually transformed, both by statute and by judicial discretion and rulings. From the early nineteenth century there was a quickening in the pace of change. Robert Peel initiated a flurry of activity when he became Home Secretary in 1822. He set about consolidating and simplifying statute law and consolidating the procedures for selecting jurymen. He also extended the provision of expenses for prosecutors and witnesses, and gave magistrates the power to bail the accused. His reforms were continued by the Whig government that came in to pass the Great Reform Act. Most notable among the Whigs’ legal reforms was the Prisoners’ Counsel Act (1836).
See also:
Initial Accusations
The Public Office, Bow Street magistrates office, from The Malefactor's Register; or the Newgate and Tyburn Calendar(1779). © British Library
Before 1829, London did not have a police force in the modern sense of the term. (See Policing in London.) The responsibility for reporting crime, and in large part for identifying the culprits, fell on the victim. Once the accused was arrested, they were examined by a magistrate, either in the magistrate's own house or more publicly in "rotation offices" such as the one established by Thomas De Veil at Bow Street.
If he was satisfied that there was a case to answer, the magistrate was required to commit the accused to prison to await trial, and bind over the victim (and occasionally witnesses) to appear in court to prosecute the case. Increasingly, over the course of the eighteenth century, magistrates used the preliminary hearing to dismiss weak cases; only committing the accused to prison if they felt the evidence was sufficient to merit a trial. There was debate, however, about how far a magistrate might go in examining the accused during these initial hearings. By 1800 there was a general feeling that magistrates should not seek confessions or do anything other than hear, and make an assessment of, the evidence. From 1848 magistrates were forbidden from interrogating the accused, though they could still cross-examine prosecution witnesses.
Although before 1826 defendants accused of felonies were rarely bailed, those accused of misdemeanours were normally bound over to appear at the next meeting of the court to answer the charges against them. From 1826 magistrates were also able to bail some of those accused of felonies, although they were still required to commit to custody any individual accused of murder and other serious crimes, and those against whom there was strong evidence of guilt.
Drawing Up the Charges
Meetings of the court at the Old Bailey were always preceded by the Sessions for the City of London and the County of Middlesex. Before these two Sessions commenced, the clerks of each court drew up indictments, according to set formulas, based on information about the nature of the crime and the identity of the accused provided in the lists of prisoners supplied by the keepers of Newgate Prison (in the City), New Prison (for Middlesex), or the Gatehouse Prison (for Westminster), as well as the recognizances of those who had been bound over to appear. They could also make use of written informations taken from the parties concerned by justices of the peace, and they may have consulted the victims in person. Decisions taken at this stage of the legal process were important, since the way the offence was defined would determine the punishment the defendant might receive if convicted, and particularly until the early nineteenth century, whether or not the offence was punishable by death. See, for example, the several different offences under the general category of theft.
The Role of the Grand Jury
At both the Middlesex Sessions at Hicks Hall (for Middlesex cases) and at the Old Bailey (for City of London cases), the Grand Juries then met to assess the indictments and decide whether there was sufficient evidence to try the case before a trial jury. At this point prosecutors and their witnesses, but not defendants, could testify. Those cases for which a grand jury believed the evidence was sufficient to warrant a trial were approved as "true bills"; those rejected were labelled "ignoramus" (or "not found") and the case was dropped (these cases do not appear in the Proceedings).
The problem with this system was that the Grand Juries therefore often had very little information to go on and no legal training. Consequently, for most of the period a significant number of cases were rejected and in the early nineteenth century the grand juries in London acquired the nickname "the hope of London thieves". From 1838 a clerk attended meetings of the grand jury at the Old Bailey to offer advice and thereafter far fewer cases were dropped at this stage. There were repeated calls for the abolition of the grand jury throughout the nineteenth century, all of which came to nothing. Nevertheless, its role was gradually reduced as pre-trial investigations by justices and the police weeded out weak cases before indictments were drawn up. Charges of murder and manslaughter formulated by coroner's juries did not need to be approved by the grand jury and these cases automatically went to trial.
The Defendant's Plea
Detail from Old Bailey trial (1809), by Augustus Pugin and Thomas
Rowlandson. © University of Sheffield
The prisoners whose indictments had been approved by a grand jury were brought into the court and formally charged. Each prisoner was asked to plead to the charge, which was read to them, and the vast majority pleaded not guilty. Until the reforms of the early nineteenth century, the court encouraged this plea because if a defendant confessed to a crime there was no flexibility in the punishment they could receive, whereas if a trial took place evidence could be introduced which might determine whether the defendant merited a lesser sentence or a pardon. With the decline in death sentences in the early nineteenth century guilty pleas became more common.
Defendants who refused to enter a plea were, unless they were found mute "by visitation of God", subject to the ordeal of peine forte et dure, in which they were forced to lie down and have weights placed on them until they either relented or died. For example see the trial of William Spiggot and Thomas Phillips alias Cross in 1721. This practice, however, was rare, and formally ended in 1772, after which date standing mute was deemed the same as pleading guilty. In 1827 the presumption of guilt was reversed and refusal to plead was redefined as equivalent to pleading innocent.
The Trial
In the late seventeenth century cases at the Old Bailey were tried in batches, with juries hearing perhaps half a dozen trials before retiring to consider their verdicts (sometimes the jurors did not even retire, they just huddled in the courtroom). They were able to do this because trials were very short, averaging perhaps half an hour per case. In a typical day early in the history of the Proceedings the Court might hear between 15 and 20 cases. With the abolition of the death penalty for many crimes in the 1820s, trials became even shorter: in 1833 one commentator calculated that the average trial took only eight and a half minutes. It is likely that the rapidity with which trials were held severely disadvantaged defendants, who had no time to accustom themselves to the courtroom environment. A further difference from modern practice is that the same jury heard numerous cases in a single sessions. New juries were not summoned for each case.
The interior of a courtroom at the Old Bailey before being rebuilt in
1907, from Criminal London: A Pictorial History from Medieval Times to
1939 (2002), p.53. © Mark Herber
Because the Old Bailey court covered two legal jurisdictions, there were separate juries for the City of London and County of Middlesex; while one jury considered its verdicts, the other heard a new batch of cases. As explained in searching for jurors, the Proceedings often indicate which jury tried each case. In 1738 the pressure of business, and the growing imbalance between Middlesex and City of London cases, led to a change in practice: juries were now expected to present their verdicts immediately after each case, without leaving the room. This affected the arrangement of the courtroom (remodelled in 1737): whereas previously jurors sat on both sides of the defendant, now they needed to sit together in order to be able to confer quickly at the end of the trial in order to give their verdict; only in difficult cases did they leave the room. In order to hear the increasing number of trials from Middlesex, additional juries were added in the late eighteenth and early nineteenth centuries.
Each trial started with the clerk reading the charge before the prosecutor presented the case against the defendant, followed by the witnesses, who testified under oath. Witness testimony was the most common source of evidence. The defendant, who until 1898 was not put on oath (it was thought this was a form of compulsion), was then asked to state his or her case. This testimony was often abridged in the published Proceedings. Cross-examinations were conducted by the judges, the defendant, or, increasingly, by defence lawyers. There was no presumption of innocence (until the early nineteenth century), and no right to remain silent. Defendants were expected to disprove the evidence presented against them and establish their innocence. The assumption was that if defendants were innocent, they ought to be able to prove it. They could cross-examine prosecution witnesses and, from 1702, call their own witnesses but, unlike prosecutors, they could not compel witnesses to attend. And since trials were not scheduled, it was impossible to predict precisely when a witness would need to appear in court. Witnesses who could testify to the defendant's good character were especially helpful, since even if the defendant was found guilty, a good reputation might lead to a lesser punishment.
The Role of Lawyers
'A Counciller', Thomas Rowlandson (c.1810). © Lewis Walpole Library, Yale
University
Lawyers were rarely present in ordinary criminal trials prior to the last decades of the eighteenth century, and only began to appear in a significant number of trials at the turn of the nineteenth century. Lawyers who appeared at the Old Bailey in the eighteenth century hardly ever made it to the very top of the legal profession. They were often accused of being ignorant of the law and of a general incivility, something that was also said to characterise their bullying of witnesses. Such accusations were not always unfounded.
In general, the Proceedings fail to report the legal arguments of prosecution and defence lawyers, preferring instead to concentrate on the confrontation between the victim and the accused.
For the Prosecution
There were very few lawyers at trials at the Old Bailey until the 1730s, and even for many decades after that the presence of lawyers was the exception rather than the rule. Prosecutors had always been allowed to have lawyers, but very few did so until the 1720s and 1730s. Their use was encouraged by the growing government practice, from the late 1690s, of funding prosecutions for the most serious offences, such as cases of seditious words and libel, treason, coining, and violent offences such as murder, rape, and robbery. Once their presence as government prosecutors had been accepted, their services were gradually exploited by prosecutors in other cases.
Detail from an Old Bailey trial, 1809, by Augustus Pugin and Thomas
Rowlandson. © University of Sheffield
The growing use of lawyers during the eighteenth century appears to have in part resulted from the growth of commerce. It was merchants and shopkeepers who hired prosecuting counsel in significant numbers. The use of prosecuting lawyers was further encouraged by a 1752 statute which allowed the courts to reimburse the expences of poor prosecutors if a conviction was obtained. A 1778 statute extended the payment of expences to all prosecutors of successful cases. By 1834 the use of prosecution counsel was widespread. Prosecution briefs written for some publicly funded cases have survived in The National Archives among the Treasury Solicitor's papers and are listed among the Associated Records.
For the Defence
Defendants in misdemeanour cases and treason cases (from 1696) could also employ legal representation, but they were excluded in felony cases (except for the purpose of raising narrow points of law) until the mid-1730s. The justification for this prohibition was that they were thought unnecessary: it required "no manner of skill to make a plain and honest defence" (Hawkins). Moreover, judges were thought capable of looking out for defendants' interests. However, the increasing number of prosecution lawyers from the early 1730s appears to have led the courts to allow defence lawyers in order to help maintain a balance. In addition, the concerns generated by "blood money cases" and the use of corrupt thief-takers encouraged the judiciary to permit counsel to raise points of law on behalf of the accused. Even so, defence lawyers were not allowed to summarise the case in an address to the jury until 1836. In any case, they were rarely used until the late eighteenth century; and even in 1800 only between a quarter and a third of defendants in property cases had counsel.
'Being Nervous and Cross Examined by Mr Garrow', Thomas Rowlandson
(1806). © Trustees of the British Museum.
The biggest influence exercised by defence lawyers on trials was through the cross-examination of prosecution witnesses. Defence counsel was often able to question the motives of the prosecutor in bringing the case, and of witnesses for testifying for the prosecutor. When the principals were eligible to receive a reward for a successful conviction, as was the case with thief-takers, or, could earn immunity from prosecution for testifying against accomplices, their word in court was open to doubt. This led to the expectation that evidence from accomplices should be corroborated by another witness. Defence lawyers also contributed to increased scepticism about hearsay evidence and pre-trial confessions, and their participation meant that in some cases defendants no longer needed to speak at all. This eventually led to defendants acquiring the privilege of remaining silent; and in the process contributed to shifting the burden of proof onto the prosecutor.
Over the course of the eighteenth and early nineteenth centuries the balance of power in the courtroom, which had been heavily weighted against defendants, shifted marginally back in their direction. With the exception of cases of murder, however, this shift occurred only for those who could afford the cost of a lawyer. In the 1820s, judges began to assign lawyers to speak on behalf of prisoners accused of serious offences. It was also possible for poor prisoners to secure legal representation by applying to defend in forma pauperis or to find funding for legal assistance through a benefactor. The sheriffs of London provided a fund for such assistance from the early nineteenth century. However, relatively few defendants benefitted from these provisions. It was not until the Poor Prisoner’s Defence Act of 1903 that an effective form of legal aid was introduced.
The Role of Judges
1841 courtroom scene, from Criminal London: a pictorial history from medieval times to
1939 (Chichester, 2002). © Mark Herber
During the eighteenth century, since lawyers were rarely present, judges played a major role in conducting trials. Although what they said was often omitted or abridged in the Proceedings, judges examined witnesses and the accused and summed up the case at the end of the trial, often clearly stating their own views on the merits of the prosecution. Although, following Bushell's Case (1670), judges were no longer allowed to fine or otherwise punish juries who failed to come up with the verdict they wanted, they could still put pressure on juries, demanding, for example, why they had reached a particular conclusion, or asking them to reconsider their verdict. Where reported, interventions by judges are referred to in the Proceedings as "The Court".
The increasing participation of lawyers altered the role of the judges. They continued to exercise supreme authority in the courtroom, but during the nineteenth century their role gradually shifted to one of arbitrating the adversarial contest between barristers, settling any arguments over the law and summing up for the jury. Throughout the whole period, however, as today the judges were charged with the weighty task of sentencing those found guilty.
The Verdict and Sentence
The jury retired, or huddled, and reached its verdict. Until 1858 they would be kept without fire, food or drink until a verdict was agreed. In fact, their decisions normally took very little time, which suggests that the views of the foreman and the most experienced jurors tended to predominate. The jury could choose between innocent, guilty, or a partial verdict. In the last case, defendants were found guilty of part of the charges against them, or of a lesser offence. As outlined under trial verdicts there were several vairants of these general verdicts available.
Old Bailey trial, 1809, by Augustus Pugin and Thomas Rowlandson. ©
University of Sheffield
Until the early nineteenth century it was usual for those prisoners who had been found guilty to be brought forward in batches at the end of the sessions to hear their punishments. By the 1840s, however, sentences were commonly passed immediately following each trial. Defendants who were convicted of capital crimes were given a chance to address the Court before they were sentenced, but, perhaps because the publisher did not wish to give any publicity to the convict, these statements rarely appear in the Proceedings.
The judges had considerable flexibility in choosing punishments, which ranged from the death penalty to a small fine (though the punishments available in each case depended on the specific offence for which the defendant was convicted). A "maiden session", when no one was condemned to death, was relatively rare before the reforms of the 1820s. On such occasions the judge was presented with a pair of white gloves.
The punishments imposed by the court, however, were frequently not carried out. Women could "plead their belly", claiming that they were pregnant, in which case they were examined by a jury of matrons and if the jury agreed their sentence was respited. Death sentences were routinely reviewed by the monarch and/or his or her ministers, who had the power to award free or conditional pardons. Some 60% of those sentenced to death in the eighteenth century were pardoned, and this figure rose to over 90% in the 1830s. Judges could also temporarily suspend other types of punishments until the case was heard by the monarch and/or his or her ministers.
Appeal and Review
Those convicted at the Old Bailey had, until 1907, very limited grounds for appeal. It was possible to file a writ of error, but primarily only with respect to the wording of the indictment, and this cumbersome and expensive procedure was rarely used. The only other option open to convicts was to apply for a pardon. All this changed with the passage of the Criminal Appeal Act in 1907, which established the Court of Criminal Appeal, with jurisdiction to hear appeals to both the verdict and sentence in criminal cases.
Judges, on the other hand, could refer any case where they were uncertain about points of law for consideration by the twelve common law judges in Westminster, by directing a special verdict. The decision of the Twelve Judges would be announced at the next sessions. The creation of the Court for Crown Cases Reserved in 1848 formalised this procedure, though this was superseded by the creation of Court of Criminal Appeal in 1907 .
Conclusion
The trial process placed defendants at a disadvantage. Typically without the benefit of legal assistance, they had to organise their cases on their own, normally while in prison awaiting trial. Until the actual trial, they were unaware of the specific evidence that would be presented against them, and therefore had to respond spontaneously to what the witnesses said. This was thought to be the best way of ascertaining the truth. Even after the Prisoners' Counsel Act of 1836 allowed defence lawyers to address the jury, and gave prisoners the right to see copies of the depositions sworn against them, defendants were still unable to see copies of their indictments and were allowed very little time to prepare a defence. In felony cases the accused appeared at the session immediately following his or her committal. This might be only a day before the actual trial and, even at the end of the period defendants in these circumstances had no right to demand extra time to prepare their case.
Court No. 1, in the Old Bailey as rebuilt in 1907, from St. John
Adcock, Wonderful London (1926/7), vol. I, p.209.
Prosecutors could also suffer under this system. They also frequently went without counsel, and judges could be sympathetic to defendants. Witnesses for the prosecution, whose expences had to be paid, did not always appear as promised. But at least prosecutors had the advantage of being able to plan their case in advance, at liberty and at their leisure. Although the increasing use of defence counsel restored some of the balance, many defendants were unable to secure legal assistance. It was thought that the 1836 Prisoner's Counsel Act would actually improve the conviction rate, since it gave prosecutors the right for the first time to challenge defendants' character evidence. For those convicted, however, the full severity of the law was often mitigated through benefit of clergy, partial verdicts, reduced or respited sentences, and pardons.
Introductory Reading
- Baker, J. H., An Introduction to English Legal History (London, 1971; 2nd edn. London, 1979)
- Beattie, J. M., Policing and Punishment in London, 1660-1750: Urban Crime and the Limits of Terror(Oxford, 2001), chapter 6
- Bentley, D. English Criminal Justice in the Nineteenth Century (London, 1998)
- Dickens, Charles, A Tale of Two Cities (first published 1859), Book 2, chapters 2 and 3 has a vivid account of a treason trial.
- King, Peter, Crime, Justice and Discretion in England, 1740-1820 (Oxford, 2000), chapter 7
- Langbein, John, The Origins of Adversary Criminal Trial (Oxford, 2003)
- May, A.N. The Bar and the Old Bailey, 1750-1850 (Chapel Hill, N.C. 2003)
For more secondary literature on this subject see the Bibliography.
https://www.oldbaileyonline.org/static/Trial-procedures.jsp
The New York State Court
The New York State Supreme Court was established in 1691, making it one of the oldest continuing courts of general jurisdiction in the United States. Pursuant to legislation adopted by the New York Assembly, the court, originally known as the Supreme Court of Judicature, was given jurisdiction over criminal and civil pleas. The court was also empowered to hear appeals from local courts. The bench consisted of a Chief Justice and two, later three, Associate Justices. Appeals were taken to the royal governor and his council and from there to the Privy Council in London. During the remainder of the colonial period, the New York Assembly and the royal governors were in conflict over the authority to regulate the jurisdiction and procedure of the court, with many New Yorkers claiming that the acts of the Assembly and English common law defined that jurisdiction and procedure. In fact, basic notions of English common law were transplanted to the State, and in part to the country generally, through the workings of the Supreme Court.
The population of the City was small at the time of the creation of the court and the number of attorneys tiny (perhaps no more than 20). New York City did not reach a population of 25,000 until 1774. The Court was not much changed by the first state constitution of 1777, although a local appeals system was, of course, established.
Although the English common law assisted New Yorkers in struggles with the royal governors and provided a basis for the assertion of important rights, that body of law had the disadvantage of being complicated, using complex terminology, ancient categories of lawsuit and legal fictions. Prominent New York attorney Henry G. Sedgwick wrote in 1821 of the persistence of pointless technicalities: "The life has departed, and the soul has gone; but the body is embalmed, and kept to future ages in a useless state, between preservation and decay." This remark reflected a developing spirit of reform in the country of which New York was a leading proponent. Between 1827 and 1829, the Legislature issued the first systematic codification of statute law in the United States.
By the time New York approached the mid-point of the 19th century, the State and City had changed greatly from the tiny, largely agrarian society in which the court had originally been born. The country was experiencing dramatic economic and social changes as the population grew and the industrial revolution spread its effects across the land. New York City and State were, then as now, capitals of commerce, industry, finance and the professions. To accommodate the new realities, the people of the State determined that a revised and modernized court system was required and, thus, the Constitution of 1846 was approved. The Constitution substantially enlarged the Supreme Court and provided that its Justices would be drawn from and sit in districts linked to county lines. This contrasted with the original practice, common in the early days of the Republic, of Judges traveling throughout the State ("riding circuit"). The new Supreme Court was the state's highest court of original, unlimited jurisdiction. In order to simplify proceedings, a new code of procedure, called the Field Code after a leading advocate for reform, David Dudley Field, was introduced in 1848. This code became widely imitated across the country as the United States developed a body of law founded on fundamental English concepts and rights but using methods of pleading and other procedures that were much more simple than the English ones and better suited to a young democracy.
The Supreme Court was the first in the country to record its opinions officially. The caseload and the production of opinions have changed radically from the early days. In 2018, the Supreme Court, Civil Branch, New York County issued 33,475 decisions on motions, which does not include dispositions at trial.
Throughout the nineteenth century, the law in New York continued to develop and to increase in sophistication, in part through the work of the Supreme Court. Industrialization and the rise of corporations transformed the economic foundations of the nation. The law contributed to these changes by providing a reasoned and efficient system for the resolution of all manner of commercial disputes.
New York continued to play an important role in the growth of the law in the twentieth century. New York lawyers were leading figures in the law’s development, in the movement for greater uniformity and comprehensibility in commercial law, in great debates over legal philosophy, and the like.
At least since the New Deal era, there has been a significant trend toward the use of legislation to address legal questions and a comparatively decreased reliance on the growth of the common law through innovative judicial decision-making. Law continues to develop through judicial decisions, of course, but more often than in previous times, decisions today concern the interpretation of statutes. At the same time, the dockets in this court have changed greatly from those of earlier times. For some decades, and continuing to the present, a great part of the work in the court has consisted of lawsuits over physical injuries.
In 1986, this court and the rest of the State court system underwent a dramatic change with the introduction of the Individual Assignment System ("IAS"). Prior to that time, the Justices of this court and their colleagues throughout the State did not concern themselves with the pace at which lawsuits moved and did not supervise cases until the eve of trial. Different Justices, sometimes many, handled pretrial applications or motions in each case. The IAS system changed this. In most instances, a case is assigned to a single Justice for all or most of its life. That Justice is now charged with the task of assuring that the case comes to a resolution quickly and with as little expense as possible. This represents a great challenge for the Justices of the court, one that was unknown to their predecessors of even a few decades ago, let alone the Justices of the Supreme Court of Judicature.
Notwithstanding the change in the character of the caseload, the court remains a leading center for the resolution of commercial law disputes. In 1995, a Commercial Division of the Supreme Court was created in Supreme Court, Civil Branch, New York County and in Monroe County to concentrate on the resolution of commercial lawsuits. The aim was and remains to ensure that New York’s system for addressing these complicated cases is efficient, sophisticated and sound, in keeping with New York’s role as not merely the national but the world capital of commerce, finance, media and other great businesses, enterprises and activities.
This court has been housed over the centuries in various facilities, starting with the Old City Hall. At the time of the Declaration of Independence, Foley Square, where the New York County Courthouse, the court's main facility, is now located, was a deep pond on which residents skated in the winter. The court sat in City Hall after its completion in 1811. The main courthouse at 60 Centre Street (shown above as it appeared years ago) was designed by a distinguished architect, Guy Lowell of Boston, and opened in 1927. (For a history of this courthouse, See: A Brief Architectural/Design History of the New York County Courthouse.)
THE BAR OF THIS COURT
Many lawyers important to the history of the country and our legal system have been members of the Bar of New York and active practitioners before the New York County Supreme Court. Alexander Hamilton, a graduate of King's College (as Columbia University was then known), was a prominent attorney in the City. In the 1780's he had a law office at 58 Wall Street and later on what is now Exchange Place. Hamilton practiced frequently in this court and even wrote a manual on practice in the court. Hamilton, whose term as Secretary of the Treasury helped greatly to establish the economic foundations of the Republic, was a distinguished advocate in commercial law. A recent poll of legal scholars named him the second most significant figure in the history of law in the United States (first was James Madison), in good part for his work on The Federalist Papers. His co-author, along with Madison, was John Jay, former Chief Justice of New York's Supreme Court of Judicature and later first Chief Justice of the United States (that court first sat in New York, in the Royal Exchange Building at Broad Street opposite Fraunces Tavern), whose name was informally attached to the Jay Treaty, negotiated by him with Great Britain, an important milestone in the early history of the country.
Other prominent attorneys practiced in this court: for example, Aaron Burr, whose name of course is forever linked to Hamilton’s and, who in the 1790's, maintained his law office at 3 Wall Street, Martin Van Buren, later President of the United States, William H. Seward, Governor of New York, United States Senator for New York, and Secretary of State of the United States, DeWitt Clinton, Samuel Tilden, William Evarts, Elihu Root, Charles Evans Hughes, among other things Governor of New York and President of the New York County Lawyers' Association, Joseph Choate, Joseph Proskauer, John W. Davis.
Thomas A. Emmet, brother of the Irish patriot Robert Emmet, was a prominent lawyer and advocate for parliamentary reform and religious equality in Ireland. Imprisoned for four years and then banished from his homeland for political activities, he arrived in New York in 1804 and became a well-known and popular leader of the New York Bar, practicing extensively before the New York Supreme Court of Judicature and serving for a period as the Attorney General of New York. Among other things, Mr. Emmet argued the landmark case of Gibbons v. Ogden before the United States Supreme Court (John Marshall, Chief Justice), opposing Daniel Webster. Mr. Emmet was a leading figure in the anti-slavery movement in New York. He became a member of the anti-slavery New-York Manumission Society shortly after his arrival and served without compensation as a Counsellor to it for the remainder of his life, in which capacity he litigated anti-slavery cases. (For more on Mr. Emmet's contributions to the anti-slavery movement in New York, See: Society of United Irishmen Revolutionary and New-York Manumission Society Lawyer: Thomas Addis Emmet and the Irish Contributions to the Antislavery Movement in New York.)
The law firm founded by Mr. Emmet in 1805, Emmet, Marvin & Martin LLP, of which Franklin D. Roosevelt was at one time a partner, continues to practice law on lower Broadway in New York City near the location where Mr. Emmet had his law office.
A bust of Mr. Emmet, which was sculpted in Florence, Italy the year after Mr. Emmet's death in 1827, is located in the rotunda of the New York County Courthouse. This bust was refurbished and rededicated by the Supreme Court, Civil Branch, New York County in 2014, the 250th anniversary of Mr. Emmet's birth.
Many members of the Bar in this county have been and remain active in two important Bar associations, the New York County Lawyers' Assocation and the New York City Bar Association (formerly the Association of the Bar of the City of New York). Through these associations, many attorneys make important contributions to progress in the legal system and to the general public interest.
THE JUDICIARY
James Kent was a Chief Justice of this court. He gave New York the country’s first codification of laws and wrote an influential text on American law based upon lectures he gave at the Columbia Law School. Chief Justice Jay was mentioned above. Other great Judges presided here, names perhaps not well known to the general public but revered by the legal community for their scholarship, judgment and dedication to the public interest: for example, Lewis Morris, Samuel Seabury, who practiced law in the Equitable Building at 120 Broadway, Irving Lehman, Bernard Botein, Charles D. Breitel, to name a few.
Benjamin N. Cardozo, a graduate of Columbia Law School who practiced law at Cardozo Brothers at 96 Broadway and later 52 Broadway, was elected a Justice of this court in 1913. His outstanding ability was such that he was promptly made a Judge of the Court of Appeals, the State’s highest court, by designation until his election to that court shortly thereafter. He went on to become Chief Judge of the Court of Appeals and to grace the Supreme Court of the United States. Cardozo is generally recognized as among the handful of the greatest Judges in the history of this country.
IMPORTANT CASES
In 1735, the court heard one of the great cases in the history of American law and freedom, the seditious libel case brought against the publisher John Peter Zenger because of inconvenient opinions expressed in Zenger's newspaper about the colonial government. The jury acquitted Zenger, though not until after two of his attorneys had been disbarred for giving voice to unorthodox views. This case provided important and enduring lessons for the legal system and the country as a whole about freedom and the power of government, lessons of particular importance during years when the temptation to codify restrictions on speech and debate about politics and matters of broad public interest was formidable.
Alexander Hamilton by no means confined his practice to commercial law. In 1804, in People v. Croswell, he appeared for the defendant, an editor who had been indicted for seditious libel based upon information he had printed about President Thomas Jefferson. Hamilton also represented the defendant in People v. Frear, in which another editor was indicted for criminal contempt based on statements he printed about the proceedings in Croswell. Hamilton lost these cases, but his arguments ultimately prevailed, contributing to the evolving national understanding of freedom of speech.
Although many other important cases in the history of the court are well worth noting, of fundamental importance too, of course, has been the court's role as dispenser of justice in hundreds of thousands of "routine" cases, those that had no particular interest to the general public of the day but that often were of vital concern to the litigants. The experience of other countries in recent decades should remind us of the centrality of a free, impartial, responsible and effective judicial system to the proper administration of government and the protection of public rights.
CONCLUSION
On the front of the 60 Centre courthouse is this inscription, taken from a letter of George Washington to the Attorney General in 1789: "The true administration of justice is the firmest pillar of good government." This remains both an inspiration and a challenge to the court, which continues to strive today, as it has for more than 300 years, to provide justice to the public of this great City and State.
https://ww2.nycourts.gov/courts/1jd/supctmanh/A_Brief_history_of_the_Court.shtml
A Brief History of Law since the Ancient World – Brewminate: We're Never Far from Where We Were
https://brewminate.com/a-brief-history-of-law-since-the-ancient-world/
