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  • Polycentric Law by Tom W. Bell / Customary Law
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      Anglo-Saxon Customary Law

      The Anglo-Saxon legal system gives us a particularly good example of a legal system embodying the six features Benson finds throughout customary law. A system of surety, known as borh, provided the foundation of Anglo-Saxon law. Under the borh system a set of ten to twelve individuals, defined at first by kinship but later by contractual agreement, would form a group to pledge surety for the good behavior of its members. The group would back up this pledge by paying the fines of its members if they were found guilty of violating customary law. A surety group thus had strong financial incentives to police its members and exclude those who persistently engaged in criminal behavior. Exclusion served as a powerful sanction: " Every person either had sureties and pledge associates or one would not be able to function beyond one's own land, as no one would deal with one who had no bond or who could not get anyone to pledge their surety to them." (Leonard P. Liggio, " The Transportation of Criminals: A Brief Political-Economic History," in Randy E. Barnett and John Hagel III, eds., Assessing The Criminal: Restitution, Retribution and the Legal Process [Cambridge, MA: Ballinger Publishing Co., 1977])

      Such reciprocal voluntary agreements have a certain timeless appeal. Consider the modern parallels: like insurance agencies, the surety groups helped members to spread risks by pooling assets; like credit bureaus, they vouched for the good standing of their own members and denied access to outsiders who had demonstrated their untrustworthiness; like credit card companies, they stood behind the claims and acts of their members. Whether ancient or modern, these common solutions to common problems all arose out of the free and spontaneous cooperation of self-interested agents. (For in depth treatment of the borh system and its replacement after 1066 by the related but distinct and non-voluntary system called frankpledge, see William A. Morris, The Frankpledge System [New York: Longmans, Green & Co, 1910], and J. E. A. Jolliffe, The Constitutional History of Medieval England [New York: W.W. Norton & Co, 1961].)

      The Anglo-Saxon courts, called moots, were public assemblies of common men and neighbors. The moots did not expend their efforts on creating or codifying the law; they left that to custom and to the essentially declaratory law codes of kings. The outcome of a dispute turned entirely on the facts of the case, which were usually established through ritual oath-giving. The disputants first swore to their accusations and denials. Each party then called on oath helpers (including members of their surety groups) to back up these claims with oaths of their own. For the court to accept any one of these oaths, it would have to be given flawlessly -- though the poetic form of the oaths made it easier to meet this requirement. Deadlocks were often settled by ordeals of fire or water. Berman points out that the ambiguity of oath taking and ordeals left room for flexible judgements, while the fear of supernatural retribution and the vital importance of a good reputation made perjury a matter that no one would take lightly. Consequently, these procedures were not simply mystical or " crazy." Similar points apply to most studies of customary law.

      Anglo-Saxon law had no category for crimes against the state or against society -- it recognized only crimes against individuals. As in other customary legal systems, the moots typically demanded that criminals pay restitution or composition to their victims -- or else face the hazards of outlawry and blood-feud. Murderers owed wergeld (literally, " man-money" ) to their victims' kin. Lesser criminals owed their victims lesser fines, elaborately graded according to the victim's status and the importance of the limb, hand, digit, fingertip, etc., that had been lost. In recognition of the importance of private property, heavier penalties were also imposed for crimes occurring in or about the home, the most serious being hamesucken, i.e. smashing up someone's house. This emphasis on the home reflected Anglo-Saxon law's concern with protecting property rights, including the notion of a protected private space. The law codes of early medieval Europe consisted largely of lists of offenses and the corresponding schedules of payments. In issuing these, Kings were not legislating in the modern sense: they were rather codifying and declaring already existing custom and practice. Like the surety groups, the moot courts depended on voluntary cooperation. Berman writes that

      Jurisdiction in most types of cases depended on the consent of the parties. Even if they consented to appear, they might not remain throughout, and even if they remained, the moot generally could not compel them to submit to its decision. Thus the procedure of the moot had to assume, and to help create, a sufficient degree of trust between the parties to permit the system to operate...(Berman, 1983, p. 56)

      This Anglo-Saxon customary legal system protected the liberties of the English long and well. Royal law rose to domination only after a bitter struggle, and even then the lasting imprint of customary law helped England to remain a relatively free society.

      The Rise of Royal Law

      In many societies, state law has advanced rapidly on the heels of military conquest. It entered England, however, with almost imperceptible subtlety. Two factors prepared the stage. First, the constant threat of foreign invaders, particularly the Danes, had concentrated power in the hands of England's defenders. Second, the influence of Christianity imbued the throne with a godly quality, allowing kings to claim a divine mandate. Onto this stage strode Alfred, king of Wessex, during the last quarter of the ninth century.

      Prior to Alfred, men served their kings voluntarily. A king had to offer battle gear, food, and plunder to get others to follow him into battle. Under Alfred and his successors this developed into the fyrd, a levy of men drawn from a locality to form a war host. More importantly, he volunteered to champion the cause of the weak -- for a fee. Weak victims sometimes found it difficult to convince their much stronger offenders to appear before the court. Kings balanced the scales by backing the claims of such plaintiffs. This forced brazen defendants to face the court, where they faced the usual fines plus a surcharge that went to the king as payment for his services.

      This surcharge, called wite, made enforcing the law a profitable business. King Alfred, strengthened by threat of invasion and emboldened by his holy title, assumed the duty of preventing all fighting within his kingdom. He did this by extending the special jurisdiction which the king had always exercised over his own household to cover the old Roman highways and eventually the entire kingdom. In effect, the boundaries of the royal household expanded to encompass the entire realm, and the protection of the peace and safety of private households was subsumed into that of the king. Alfred declared that anyone found guilty of assault owed him wite for violating the king's peace. He lacked the ability to back up this claim, however, and it went largely ignored. But he had set a trend in motion. Over the next few centuries royal law would grow stronger, with later monarchs such as Athelstan and Knut creating the skeleton of a royal legal system. This reflected the reality that almost half of England under the later Saxon kings was conquered territory (the Danelaw, the Five Boroughs, and York) which had been overrun by the Vikings after the great invasion of 853 and then regained by Alfred's successors as kings of Wessex. Faced with the problem of governing territory where the old Saxon institutions had disappeared, they were driven to create a governmental and legal system which was, for the time, unusually uniform and centralized (e.g. in its use of a standardized unit of law and administration, the hundred ). This centralization received a major boost with the Norman conquest of 1066, when an alien minority of rulers found the system they inherited highly congenial. Eventually royal law consumed virtually all of England's legal order, as it did in countries throughout Europe. But first royal law would have to contend with some stiff competition.

      From Polycentric Law to State Law

      A legal revolution swept through Europe in the years between 1050 and 1200. While the power of the Church rose to rival that of kings, the law of the church -- inspired by the newly rediscovered Justinian codification of Roman law -- rose to new levels of sophistication. The key events in this process were the Gregorian reforms and the Investiture Crisis of the twelfth century. The actual issue, whether kings could invest bishops with the symbols of their office and so " make bishops," may seem obscure to us, but it had profound effects. These events transformed the church into an independent institution, distinct from monarchies and staffed by a clergy who formed an independent order in society, marked off by their vow of celibacy. (In marked contrast, the church in Byzantium remained the creature of the emperor and never gained independence.) Following its achievement of independence, the church created the great system of canon law, with commentators from Gratian onwards turning a haphazard collection of edicts into a massive, sophisticated intellectual system. A major impetus to this process was provided by the previously mentioned rediscovery of Roman law in the form of Justinian codes, which were a compilation of the decisions of Roman jurists. The Church's new-found independence in turn helped to develop the state, as kings reformed royal law to give it the order and strength of ecclesiastical law.

      Other legal systems entered the fray. Thousands of cities and towns sprang up, leading to new centers of power and the development of urban law. The support of the church and a labor shortage brought an element of reciprocity to the relations between peasants and lords, triggering the emergence of manorial law. Vassals likewise won standing in the separate jurisdiction of feudal law. And the rise of a populous, mobile merchant class promoted the evolution of another form of privately produced law, the law merchant. (See Leon E. Trakman, The Law Merchant: The Evolution of Commercial Law [Littleton, CO: Fred B. Rothman & Co., 1983]. For studies of the way this pluralistic system worked see these excellent collections: John Bossy, ed., Disputes and Settlements: Law and Human Relations in the West [Cambridge: Cambridge University Press, 1983]; Wendy Davies and Paul Touraine, eds., The Settlement of Disputes in Early Medieval Europe [Cambridge: Cambridge University Press, 1986].)

      Berman provides the single best source for sorting out this legal tangle in his magisterial Law and Revolution. He there explains how competition between jurisdictions helped to protect individual liberty: " A serf might run to the town court for protection against his master. A vassal might run to the king's court for protection against his lord. A cleric might run to the ecclesiastical court for protection against the king." (Berman, 1983, p.10) The same person, in different capacities (merchant, cleric, vassal, townsman, etc.), enjoyed a significant degree of choice among legal systems, forcing them to compete. This competition for " customers" and the interaction among rivalrous legal systems resulted in many of the legal innovations that we take for granted today.

      For the most part, royal law won this competition among jurisdictions. It had two important advantages over its rivals. The power to tax allowed it to subsidize its legal services. Royal courts absorbed the local functions of the law merchant, for instance, by adopting its precedents and offering to enforce them at bargain rates. Royal law also wielded far greater coercive power than competing legal systems, which depended on reciprocity and trust for their operation. The overarching or paramount power of monarchs enabled them to restrict competition to their jurisdiction, with force the ultimate support for royal action. Thus in England Edward I was able to restrict the growth of private jurisdictions through the Quo Warranto procedure created by the Statute of Gloucester in 1278. (This growth, however, was not restricted entirely: see Robert C. Palmer, The County Courts of Medieval England [Princeton, NJ: Princeton University Press, 1982].) So-called " weak" monarchs, i.e. those who lacked the physical force to be able to aggrandize their power in this way, were often those whose reigns saw greater prosperity and, not coincidentally, growth of private legal systems. (For an example of this see the account of late medieval Scotland, supposedly plagued by " weak kings," given by Jenny Wormald in " Bloodfeud, Kindred and Government in Early Modern Scotland," in Past and Present, No. 87, 1980, pp. 54-97, and in Lords and Men in Scotland: Bonds of Manrent 1442-1603 [Edinburgh: John Donald, 1985].)

      Henry II stands out as the central figure in the history of English royal law. Through measures such as the Assize of Clarendon he established a permanent court of professional judges, the use of inquisitional juries, regular circuits for itinerant judges, and a system of standardized forms of action via writs. The system of itinerant justices, in particular, reveals Henry's motivations; these justices also served as tax collectors.

      The legal conquests of King Henry II and kings throughout high-medieval Europe established a reign of state law that has lasted to this day. Although grafted to the good stock of customary law, state law grew in strange, twisted ways. This transformation reflected the royalists' original motives for establishing a monopoly in law and the secret key to their success: restructuring property rights. Customary legal systems viewed crimes as violations of individuals' property rights, including rights to " personal peace" ; hence the emphasis on restitution for victims, with the accompanying incentive for individuals to enforce the law. The new royal law classified murder, rape, theft, and so on as crimes against the state, rather than as crimes against individuals. Fines went to the king. Victims got only the satisfaction of seeing criminals suffer corporal punishment. Dissatisfied individuals continued to seek restitution out of court, so state officials forbade them to take justice into their own hands. This sharply reduced victims' incentives to pursue criminals, and statutes demanding the victims' cooperation had little effect. The state therefore developed the police powers necessary to enforce its laws on criminals and victims alike. (For an overview of this transformation see Geoffrey Parker and Bruce Lenman, " The Judicial Revolution," in N. G. Parker, B. P. Lenman and Victor A. C. Gatrell, eds., Crime and the Law: The Social History of Crime In Europe Since 1500 [London: Europa Press, 1980]. For an account of the U.S. legal system's poor treatment of victims see William F. McDonald, " The Role of the Victim in America," in Barnett and Hagel 1977, pp. 295-307.)

      The change from customary to state law did not happen suddenly and finally, nor did it flow in a smooth, one-way process. The change took a very long time, its two main active periods coming during the eleventh and sixteenth to seventeenth centuries. The latter period saw the appearance of centralizing, absolutist monarchies and the so-called " reception" of Roman law, with customary systems replaced by uniform ones derived from Roman principles. The most notable example of this was the Carolina, a system of romanized criminal law imposed in Germany by Charles V. By contrast, the later Middle Ages had seen a recession of royal power, and the revival of customary law systems in many places.

  • English Legal History Materials: I. The Nature of Courts and the Law Before 1176.
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    • Anyone who has studied modern law will think reflexively about law and legal systems in certain ways. It is essential for understanding the origins of the common law, however, to understand what went before, and for this certain preconceptions must be discarded. The following documents will introduce you to jurisdictions and court structure of the law before 1176. You should be thinking about the relationship of court structure, discretion and rules of law, and the implications of a non-bureaucratic society on conceptions of law.

      England is divided into counties (which in turn are subdivided into hundreds), which constituted substantial communities with their own customs, evidenced and created by the county court. The county courts should be considered the "natural" venue for all cases, unless for some specific reason an individual case or a class of cases is withdrawn elsewhere. In nature, it is omnicompetent and needs no authorization to hear a case, although for specific reasons, such as sheriffly inactivity, the king might order it to hear a case. Likewise, in the twelfth and thirteenth centuries, increasing restrictions were placed on the county courts; and written authorizations or orders to handle cases (such orders being called "writs") became commonplace. Nevertheless, keep it in mind that county jurisdiction is by nature omnicompetent; they are the natural venue and any other venue must be explained. It will be easy to forget this, since the course will be concentrated so heavily on the king's central courts, which by and large are courts of special jurisdiction and can only operate by virtue of an express royal order to hear a case, by virtue of a writ. The writ system, central to the growth of the common law, derives from the fact that, since the counties were the natural venue, the king's court had to have express authorization for the exercise of jurisdiction

  • English Common Law - II. The Reign of King Stephen (1135-1154)
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    • II. The Reign of King Stephen (1135-1154)

      When King Henry I died in 1135, he left only a daughter (Matilda), but a daughter to whom the English magnates had sworn loyalty and undertaken to acknowledge as queen.[50] Henry I's nephew, Stephen, was in fact acknowledged as king in 1135, and, because of mismanagement, there ensued a war between Matilda (reinforced by husband, who was a French count) and Stephen. The war was indecisive, but at one time or another both Stephen and Matilda had seemed to be victorious. Henry, Matilda's son and thus grandson to Henry I, eventually took over his mother's fight; because of a compromise in 1153, Henry became king (Henry II) at Stephen's death in 1154. It was during Henry II's reign (1154-1189) that the common law began. Note that the common law is designated "common" because it was a law common to all of England and administered by a central court, as distinguished from the customary law that varied, albeit often only in minor ways, from county to county, lordship to lordship, or manor to manor. Moreover, the common law began as the result of political occurrences, not from jurisprudential considerations.

      II.A. The Treaty of Winchester (1153)

      The Treaty of Winchester was the formal conclusion of the war between King Stephen and Henry, Matilda's son and the future Henry II. The treaty was arranged because the armies refused to join battle, so that Stephen and Henry were effectively in stalemate. This treaty occupies an important position in the origins of the common law, because it set the pattern by which the king undertook an obligation for the maintenance of certain tenures and thus interfered for the first time in a regular way between his tenants-in-chief and their tenants. For the first time the holding of such land became a concern for the king, instead of being a contractual matter between the lord and his tenant to be handled in the lord's own feudal court, a court structured as a communal court. The treaty itself shows none of this, but the terms must be understood to understand what happened.

  • common law
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    • n. the traditional unwritten law of England, based on custom and usage, which began to develop over a thousand years before the founding of the United States. The best of the pre-Saxon compendiums of the common law was reportedly written by a woman, Queen Martia, wife of a king of a small English kingdom. Together with a book on the "law of the monarchy" by a Duke of Cornwall, Queen Martia's work was translated into the emerging English language by King Alfred (849-899 A.D.). When William the Conqueror invaded England in 1066, he combined the best of this Anglo-Saxon law with Norman law, which resulted in the English common law, much of which was by custom and precedent rather than by written code. By the 14th century legal decisions and commentaries on the common law began providing precedents for the courts and lawyers to follow. It did not include the so-called law of equity (chancery), which came from the royal power to order or prohibit specific acts. The common law became the basic law of most states due to the Commentaries on the Laws of England, completed by Sir William Blackstone in 1769, which became every American lawyer's bible. Today almost all common law has been enacted into statutes with modern variations by all the states except Louisiana, which is still influenced by the Napoleonic Code. In some states the principles of Common Law are so basic they are applied without reference to statute.

  • Does "rule of thumb" refer to an old law permitting wife beating?
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    • Cecil replies:

      Ease your mind, bud. "Rule of thumb" doesn't refer to wife beating. I know it looks like I'm on some sort of rabid antifeminist crusade here. But at least we'll keep the etymologies straight.

      Christina Hoff Sommers explains the whole confused business in her 1994 book Who Stole Feminism? How Women Have Betrayed Women. For more than 300 years "rule of thumb" has meant what most people think it means: any rough-and-ready method of estimating. It's believed to have originated with woodworkers, who made measurements with their thumbs. For more than 20 years, however, some feminists have maintained that rule of thumb has the darker meaning alluded to above. They say that the principle of regulated wife beating was elucidated in the famous legal commentaries of William Blackstone (1723-'80), the basis of much U.S. common law, and that it prevailed in state courts well into the 19th century.

      However, in Blackstone, as Sommers notes, there's no mention of the rule of thumb. We do find the following discussion: "The husband also, by the old law, might give his wife moderate correction . . . in the same moderation that a man is allowed to correct his apprentices or children. . . . But with us, in the politer reign of Charles the Second [1660-'85], this power of correction began to be doubted; and a wife may now have security of the peace against her husband." In other words, once upon a time in olde England, a man could beat his wife. But don't try it now.

      Wife beating has never been legal in the U.S. The Massachusetts Bay Colony prohibited it in 1655, religious groups campaigned against it, and vigilantes occasionally horsewhipped men accused of it. Most states had explicitly outlawed it by 1870.

      The old permissive approach wasn't entirely forgotten, however. It was cited in two court rulings, one in Mississippi in 1824, the other in North Carolina in 1874. Both judges referred to an "ancient law" by which a man was allowed to beat his wife with a stick provided it was no wider than his thumb. Where the judges came up with the thumb angle I don't know; as I say, it is not found in Blackstone. At any rate, both judges rejected the principle--each found the husband guilty in the wife-beating case he was adjudicating. And neither referred to the old law as the rule of thumb.

      The two rulings were mentioned in an article by sociologist Robert Calvert that was published in a 1974 anthology Violence in the Family (Steinmetz and Straus, editors). In 1976, possibly having seen the article, Del Martin, coordinator of the NOW Task Force on Battered Women, wrote, "Our law, based upon the old English common-law doctrines, explicitly permitted wife-beating for correctional purposes. However . . . the common-law doctrine had been modified to allow the husband 'the right to whip his wife, provided that he used a switch no bigger than his thumb'--a rule of thumb, so to speak."

      "Our law" did not permit wife beating, but set that aside. Martin clearly was using "rule of thumb" as figure of speech--she didn't claim it actually referred to legalized wife beating. As Sommers shows, however, this detail eluded subsequent retellers of the tale, the most egregious example being the title of a 1982 report on wife abuse by the U.S. Commission on Civil Rights, "Under the Rule of Thumb." This dark interpretation is now an entrenched popular belief. So let's clarify once and for all: (1) English judges apparently took a more permissive attitude toward wife beating prior to 1660, but this attitude had been rejected by the time of Blackstone's commentaries, upon which our modern common law relies. (2) Wife beating has never been legal in the U.S. (3) A couple of 19th-century U.S. trial opinions referred to an "ancient law" permitting a husband to beat his wife with a stick not exceeding a thumb's width but rejected said law. (4) While this alleged rule involved a thumb, it was not the origin of "rule of thumb." A complicated story, but one hopes we've gotten it straight at last.


  • The "Rule of Thumb for Wife-Beating" Hoax
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    • Feminists often make that claim that the "rule of thumb" used to mean that it was legal to beat your wife with a rod, so long as that rod were no thicker than the husband's thumb. Thus, one constantly runs into assertions like this: someone might want to be careful using "rule of thumb" in a sarcastic way. my criminal law teacher at UCLA noted that rule of thumb started in England for punishing wives who cheated on their husbands. the rule was that the rod used to beat them could not be thicker than one's thumb(!).

      However, Christina Hoff Sommers documents how the link between the phrase "rule of thumb" and wifebeating is a feminist-inspired myth of recent vintage. In her book "Who Stole Feminism" (NY: Simon & Schuster, 1994, p. 203) Sommers writes:

      ...The 'rule of thumb' story is an example of revisionist history that feminists happily fell into believing. It reinforces their perspective on society, and they tell it as a way of winning converts to their angry creed...

      The 'rule of thumb', however, turns out to be an excellent example of what may be called a feminist fiction. Is is not to be found in William Blackstone's treatise on English common law. On the contrary, British law since the 1700s and our American laws predating the Revolution prohibit wife beating, though there have been periods and places in which the prohibition was only indifferently enforced.

      That the phrase did not even originate in legal practice could have been ascertained by any fact-checker who took the trouble to look it up in the Oxford English Dictionary, which notes that the term has been used metaphorically for at least three hundred years to refer to any method of measurement or technique of estimation derived from experience rather than science.

      According to Canadian folklorist Philip Hiscock, "The real explanation of 'rule of thumb' is that it derives from wood workers... who knew their trade so well they rarely or never fell back on the use of such things as rulers. instead, they would measure things by, for example, the length of their thumbs." Hiscock adds that the phrase came into metaphorical use by the late seventeenth century. Hiscock could not track the source of the idea that the term derives from a principle governing wife beating, but he believes it is an example of 'modern folklore' and compares it to other 'back-formed explanations.' such as the claim asparagus comes from 'sparrow-grass' or that 'ring around the rosy' is about the plague.

      We shall see that Hiscock's hunch was correct, but we must begin by exonerating William Blackstone (1723-1780), the Englishman who codified centuries of legal customs and practices into the elegant and clearly organized tome known as Commentaries on the Laws of England. The Commentaries, a classic of legal literature, became the basis for the development of American law. The so-called rule of thumb as a guideline for wife-beating does not occur in Blackstone's compendium, although he does refer to an ancient law that permitted "domestic chastisement"....

  • Extracts from William Blackstone's Commentaries on the Laws of England 1765-1769
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    • Of husband and wife

      Quotations from Blackstone taken from Beard, M.R. 1946 Woman as Force in History, p.89

      By marriage, the husband and wife are one person in law; that is the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything;...Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities that either of them acquire by the marriage...A man cannot grant any thing to his wife, or enter into covenant with her, for the grant would be to suppose her separate existence;...A woman indeed may be attorney for her husband; for that implies no separation from, but is rather a representation of her lord. And a husband may also bequeath anything to his wife by will; for that cannot take effect until the coverture is determined by his death. The husband is bound to provide his wife with necessaries by law, as much as himself: and if she contracts debts for them, he is bound to pay them; but for anything besides necessaries, he is not chargeable...If the wife be indebted before marriage, the husband is bound afterward to pay the debt; for he has adopted her and her circumstances together...

      The husband also (by the old law) might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with the power of restraining her, by domestic chastisement.... But, with us, in the politer reign of Charles the second, this power of correction began to be doubted: and a wife may now have security of the peace against her husband; or, in return, a husband against his wife....

      These are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities which the wife lies under, are for the most part intended for her protection and benefit. So great a favourite is the female sex of the laws of England.

  • Rule of Thumb
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    • Rule of Thumb: In Who Stole Feminism? I deny that the phrase "rule of thumb" originated in the common law giving a husband the right to beat his wife with a stick no thicker than his thumb. Ms. Flanders, however, believed that the phrase did originate in wife beating. She excitedly reported her "finding" in a draft of her EXTRA! piece that she circulated to journalists last summer. In that July 94 version she wrote:

      [Sommers] argues that the "rule of thumb," which is understood to refer to old common law that permitted a husband to punish his wife, is a feminist fiction. It's not.

      Yes it is. And by now Ms. Flanders knows it. But rather than withdraw from a debate she was clearly unprepared to enter, she now quietly drops her accusation that I was wrong about the origin of the phrase, but then goes on to accuse me of covering up the fact that William Blackstone said that the common law sanctioned wife-beating. But I quoted Blackstone on this (p.205): "The husband by the old law might give his wife moderate chastisement." It is Flanders who covers up the fact that Blackstone cites the old law only to point out that it had been superseded in his own "politer day." According to Blackstone, "A wife may now have security of the peace against her husband."

  • Sir William Blackstone - Commentaries on the Laws of England - "a wife may now have security of the peace against her husband"
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    • THE husband also (by the old law) might give his wife moderate correction.57 For, as he is to answer for her misbehavior, the law thought it reasonable to entrust him with this power of restraining her, by domestic chasisement, in the same moderation that a man is allowed to correct his servants or children; for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds;58 and the husband was prohibited to use any violence to his wife, aliter quam ad virum, ex causa regiminis et castigationis uxoris fuae, licite et rationabiliter pertinet [other than as licitly and reasonably pertains to the husband for the rule and correction of his wife].59 The civil law gave the husband the same, or a larger, authority over his wife; allowing him, for some misdemeanors, flagellis et sustibus acriter verberare uxorem [with flails and cudgels to beat the wife energetically], for others, only modicam castigationem adbibere [to apply limited punishment].60 But, with us, in the politer reign of Charles the second, this power of correction began to be doubted:61 and a wife may now have security of the peace against her husband;62 or, in return, a husband against his wife.63 Yet the lower rank of people, who were always fond of the old common law, still claim and exert their ancient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehavior.64

  • The Language of Violence: History
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    • The Language of Violence: History. (NOTE: These readings are required for Group A participants)

      The legal history of domestic violence sheds some light on the current situation. It is important to keep in mind that wife beating has gone from a legal right of a husband to a legal prohibition. Consider the following:

      Angela Browne, When Battered Women Kill, 164-65 (1987).

      "…(S)uch physical domination of wives by husbands was firmly grounded in ancient laws and customs. The first known "law of marriage" was formalized by Romulus (who was credited with the founding of Rome in 753 B.C.) and required married women ‘as having no other refuge, to conform themselves entirely to the temper of their husbands and the husbands to rule their wives as necessary and inseparable possessions.’ The attitudes contained in this directive, ancient though the formulation may be, sound hauntingly like the sentiments expressed by men in (current) violent relationships.

      In the late 1400’s, Friar Cherubino of Siena, in his Rules of Marriage, operationalized the process by which a husband was to rule his wife, recommending:

      ‘when you see your wife commit an offense, don’t rush at her with insults and violent blows…Scold her sharply, bully and terrify her. And if this still doesn’t work…take up a stick and beat her soundly, for it is better to punish the body and correct the soul than to damage the soul and spare the body…then readily beat her, not in rage but out of charity and concern for her soul, so that the beating will redound to your merit and her good.’

      In his extensive commentary on English law, sir William Blackstone explained the powers of authority given to husbands in legal, rather than moralistic, terms. He noted:

      ‘for as [the husband] is to answer for her misbehavior, the law thought it reasonable to intrust him with this power of chastisement, in the same moderation that a man is allowed to correct his apprentices or children…

      Blackstone went on to reassure his readers that, "this power of correction was contained within reasonable bounds…"; although the notation delineates some legalized ‘chastisement’ that sound markedly more violent than contained, as when Blackstone observes:

      The civil law gave the husband the same, or a larger, authority over his wife: allowing him for some misdemeanors, to beat his wife severely with scourges [whips used for punishing people] and cudgels [stout sticks or clubs with a rounded head]…for others only moderate chastisement.

      Even if a husband killed his wife, it was not considered a major offense. Yet for a wife to kill her husband was to kill her lord and master, and was an act comparable to treason. As Blackstone commented:

      Husband and wife, in the language of the law, are styled baron and feme…[I]f the baron kills his feme it is the same as if he had killed a stranger, or any other person; but if the feme kills her baron, it is regarded by the laws as a much more atrocious crime, as she not only breaks through the restraints of humanity and conjugal affection, but throws off all subjection to the authority of her husband. And therefore the law denominates her crime a species of treason, and condemns her to the same punishment as if she had killed the king. And for every species of treason…the sentence of woman was to be drawn and burnt alive.'"

  • XIII. Legal Literature.: § 5. English Common Law in the Twelfth Century
    • At

    • The common law of England, in the twelfth century, was a new creature. There were in it elements taken from the old West Saxon, Merican and Danish law; there were also elements derived from Norman custom; but the most important elements were novel, and were introduced by the authoritative over-ruling of the king’s court. 4 Hoc tremendum regiae majestatis imperium, as Leges Henrici call it, was immensely extended by the Angevin kings and their ministers. By means of royal writs, issuing from chancery, they called such cases as they would before the curia regis or its itinerant justices; and these cases they treated with equitable freedom, drawing their law eclectically from many sources, of which, perhaps, at any rate in the sphere of public law, the Frankish were more important than the English. 5 But, though the elements were taken from many sources, the basis of the system was the royal writ.

  • Common Law
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    • Common Law is a system of law in place in England and its colonies. Common Law—law common to all England—was based on the principle that the rulings made by the King's courts were made according to the common custom of the realm, as opposed to decisions made in local and manorial courts which judged by provincial laws and customs. The crafting of English Common Law was begun in the reign of Henry II, who had foreign legal learning and instituted legal reform in England. The royal judges of Henry II, and of succeeding reigns, evolved the Common Law from the procedure of the King's central courts—the Court of King's Bench, the Exchequer, and the Court of Common Pleas.

      Common Law is also understood to be “law by precedent”, distinguished from statutory law, i.e., parliamentary legislation to which Common Law is complementary.

  • King Alfred (849 - 899)
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    • Although the Danes were defeated at Ashdown, the West Saxons were forced to negotiate and pay tribute after losing further battles. But Alfred refused to surrender and in 878, he rallied men from Somerset and Wiltshire and again defeated the Danes in the Battle of Edington. The Danes made peace and Guthrum, their king, was baptised with Alfred as his sponsor. By 886, Alfred had freed London from Danish occupation and a treaty was made with Guthrum and the East Anglians. England was divided, with the east (between the Rivers Thames and Tees) declared to be Danish territory - later known as the 'Danelaw' - where English and Danes were treated as equals by law.

      The failure of the Danes to make any more advances against Alfred was largely a result of the defensive measures he undertook during the war. He set about strengthening old forts and building new, and he ensured that his army was well organised. He also built up a navy to meet invasions. Larger ships were constructed to his own design for use against the coastal raids that continued even after 896.

      Alfred understood the value of diplomacy and formed amicable relations with Mercia and Wales; Welsh rulers sought his support and even provided troops for his army in 893. As an administrator Alfred advocated justice and order. He established a code of laws, after studying the principles of law-giving in the Book of Exodus and the codes of Aethelbert of Kent, Ine of Wessex and Offa of Mercia. While avoiding unnecessary changes to custom, he limited the practice of the blood feud and imposed heavy penalties for breach of oath or pledge.

  • The Common Law: Tradition & Stare Decisis. By Peter Landry.
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    • Before getting into the specifics of the common law, let me first set forth a small speech given in 1875 by an obscure judge. The name of the judge was The Honourable Joseph Neilson, Chief Justice of the City Court of Brooklyn. He gave this address at some sort of a gathering, (not in a court, I don't think). The publisher of the book2 in which I discovered this short speech, entitled it "The Growth of Principles."

      "At the sea shore you pick up a pebble, fashioned after a law of nature, in the exact form that best resists pressure, and worn as smooth as glass. It is so perfect that you take it as a keepsake. But could you know its history from the time when a rough fragment of rock fell from the overhanging cliff into the sea, to be taken possession of by the under currents, and dragged from one ocean to another, perhaps around the world, for a hundred years, until in reduced and perfect form it was cast upon the beach as you find it, you would have a fit illustration of what many principles, now in familiar use, have endured, thus tried, tortured and fashioned during the ages. We stand by the river and admire the great body of water flowing so sweetly on; could you trace it back to its source, you might find a mere rivulet, but meandering on, joined by other streams and by secret springs, and fed by the rains and dews of heaven, it gathers volume and force, makes its way through the gorges of the mountains, plows, widens and deepens its channel through the provinces, and attains its present majesty. Thus it is that our truest systems of science had small beginnings, gradual and countless contributions, and finally took their place in use, as each of you, from helpless childhood and feeble boyhood, have grown to your present strength and maturity. No such system could be born in a day. It was not as when nature in fitful pulsations of her strength suddenly lifted the land into mountain ranges, but rather, as with small accretions, gathered in during countless years, she builds her islands in the seas.

      "It took a long time to learn the true nature and office of governments; to discover and secure the principles commonly indicated by such terms as 'Magna Charta,' the 'Bill of Rights,' 'Habeas Corpus,' and the 'Right of trial by jury;' to found the family home, with its laws of social order, regulating the rights and duties of each member of it, so that the music at the domestic hearth might flow on without discord; the household gods so securely planted that 'Though the wind and the rain might enter, the king could not'; to educate noise into music, and music into melody; to infuse into the social code and into the law a spirit of Christian charity, something of the benign temper of the New Testament, so that no man could be persecuted for conscience sake, so that there should be an end of human sacrifice for mere faith or opinion; the smouldering fires at the foot of the stake put out, now, thank God, as effectually as if all the waters that this night flood the rivers had been poured in upon them. It took a long time to learn that war was a foolish and cruel method of settling international differences as compared with arbitration; to learn that piracy was less profitable than a liberal commerce; that unpaid labor was not as good as well-requited toil; that a splenetic old woman, falling into trances and shrieking prophecies, was a fit subject for the asylum rather than to be burned as a witch.

      "It took a long, long time after the art of printing had been perfected before we learned the priceless value, the sovereign dignity and usefulness of a free press.

      "But these lessons have been taught and learned; taught for the most part by the prophets of our race, men living in advance of their age, and understood only by the succeeding generations. But you have the inheritance."

    • Primitive man knew nothing of laws, all he knew was custom. Custom, or tradition, evolved into rules for living. They grew spontaneously, viz., not deliberately designed by some particular human mind. While no one can point to the origins of our traditional moral rules, their function in human society is clear enough. These moral rules, or traditions, are necessary to preserve the existing state of affairs; such that culture was allowed to evolve; and in turn, with culture, civilizations came about. Thus, as David Hume wrote, man developed in an evolutionary fashion -- not only biologically, but also culturally. That, like the lot of all animals, man evolved in accordance with certain natural rules, in that "no form can persist unless it possesses those powers and organs necessary for its subsistence: some new order or economy must be tried and so on, without intermission; until at last some order which can support and maintain itself, is fallen upon."

      The preservation of existing laws as was represented by traditions and cultural rules, to early man, at least, was of greater concern then putting up with bad laws: change was what men feared: change and its social upheaval was what brought on suffering and death. I quote from Bagehot's work:

      "In early societies it matters much more that the law should be fixed than that it should be good. Any law which the people of ignorant times enact is sure to involve many misconceptions, and to cause many evils. Perfection in legislation is not to be looked for, and is not, indeed, much wanted in a rude, painful, confined life. But such an age covets fixity. That men should enjoy the fruits of their labour, that the law of property should be known, that the law of marriage should be known, that the whole course of life should be kept in a calculable track, is the summum bonum of early ages, the first desire of semi-civilized mankind. In that age men do not want to have their laws adapted, but to have their laws steady. The passions are so powerful, force so eager, the social bond so weak, that the august spectacle of an all but unalterable law is necessary to preserve society. In the early stages of human society all change is thought an evil. And most change is an evil. The conditions of life are so simple and so unvarying that any decent sort of rules suffice, so long as men know what they are. Custom is the first check on tyranny; that fixed routine of social life at which modern innovations have, and by which modern improvement is impeded, is the primitive check on base power. The perception of political expediency has then hardly begun; the sense of abstract justice is weak and vague; and a rigid adherence to the fixed mould of transmitted usage is essential to an unmarred, unspoiled, unbroken life." (Walter Bagehot, The English Constitution, at pp. 229-30.)

    • Do not, however, be mistaken - there, is, a conscious effort by those involved (lawyers and judges) to keep the law pure: not to change it, but to apply it. This principle is called stare decisis, Latin, which literally translated means, "stand by things decided." Stare decisis has come to us as a most sacred rule of law. A judge is to apply the law as it is presented to him through the previous decisions of the court; it is not the judge's function to make or remake the law that is the function of the legislature.4 However, judges do make law even though they try not to; indeed it is their function, under a system of common law, to do so; but not consciously and only over the course of time, many years, as numerous similar cases are heard and decided. The common law has been and is built up like pearls in an oyster, slowly and always in response to some small personal aggravation, infinitesimal layer after infinitesimal layer. It is built up upon the adjudications of courts:

      "... built up as it has been by the long continued and arduous labors, grown venerable with years, and interwoven as it has become with the interests, the habits, and the opinions of the people. [Without the common law a court would] in each recurring case, have to enter upon its examination and decision as if all were new, without any aid from the experience of the past, or the benefit of any established principle or settled law. Each case with its decision being thus limited as law to itself alone, would in turn pass away and be forgotten, leaving behind it no record of principle established, or light to guide, or rule to govern the future." (Hanford v. Archer, 4 Hill, 321.)

      Tyrants can only get a hold of a central system where the rules issue from a single authority (government); tyrants cannot get a hold of a system which depends on a spontaneous participation in the law-making process on the part of each and all of the inhabitants of a country, viz., a system of common law.

[Links relating to history of Habeas Corpus (an English Invention)]
[Links relating to Lord Mansfield, Re: the author of the decision in Somersett's Case, which ended slavery in England (1772)]

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