Bowman on British Impeachments (1376-1787) and the Present American Constitutional Crisis

Frank O. Bowman III, University of Missouri School of Law, has published British Impeachments (1376 – 1787) & the Present American Constitutional Crisis. Here is the abstract.

Impeachment is a British invention. It arose as one of a set of tools employed by Parliament in its long contest with the Crown over the reach of the monarch’s authority. British impeachment practice matters to Americans because the framers and ratifiers of the U.S. Constitution were the conscious heirs of Britain’s political evolution. The founders’ understanding of British history influenced their decision to include impeachment in the American constitution and their conception of how impeachment fit in a balanced system of ostensibly co-equal branches. It also produced two central features of American impeachment: the limitation of remedy to removal from office and the definition of impeachable conduct, particularly the famous phrase “high Crimes and Misdemeanors” adopted directly from British parliamentary language. Therefore, at a moment when impeachment talk is rampant, a reexamination of British impeachments is in order. This Article is the first comprehensive analysis of the entire arc of British impeachments from 1376 to 1787 since Raoul Berger’s classic 1974 study. It gives particular attention to issues raised by the current presidency. The Article traces the evolution of Parliament’s use of impeachment and of the categories of behavior customarily designated as impeachable. These embraced, but were never limited to, indictable crimes, and included: armed rebellion and other overt treasons; common crimes like murder and rape; corruption (particularly the abuse of office for self-enrichment); incompetence, neglect, or maladministration of office; and betrayal of the nation’s foreign policy interests. The last of these categories has not been emphasized in modern American scholarship, but assumes particular salience in the present moment. Finally, and crucially, the Article concludes that, although Parliament sometimes used impeachment for less dramatic ends, its one indispensable function was removal of officials whose behavior threatened the constitutional order by promoting royal/executive absolutism over representative institutions and the rule of law. Critics of the incumbent president may find this thread of British precedent both poignant and potentially useful.

Download the article from SSRN at the link.

Allison on The Westminster Parliament's Formal Sovereignty in Britain and Europe from a Historical Perspective @cambridgelaw

John W. F. Allison, Cambridge University Faculty of Law, has published The Westminster Parliament's Formal Sovereignty in Britain and Europe from a Historical Perspective as University of Cambridge Faculty of Law Research Paper No. 47/2018. Here is the abstract.

In the historical backdrop to domestic British debates about Brexit has been tension between two contrasting and competing conceptions of the Westminster Parliament’s sovereignty. In issue has been whether or how parliamentary sovereignty has been subject to constraint, to limitations of form or substance, in strict legal theory or in practical politics. The tension was the product of a doctrinal dichotomy that Albert Venn Dicey introduced in the late-nineteenth century. He introduced it in attempting to juridicalise or juridify the constitution in his foundational and multi-edition textbook ‘The Law of the Constitution’. The dichotomy was, on the one hand, of a formal legal conception of Parliament’s sovereignty as limitless in theory and, on the other hand, of a substantive political conception of its sovereignty as limited in actuality. The tension between these legal and political conceptions has been manifest since then in various formal exercises of Parliament’s sovereignty that have impaired its substance. They include parliamentary enactments that conferred self-government in the process of decolonisation, that granted the executive powers to amend parliamentary legislation through “Henry VIII clauses”, and that delegated various governing powers in devolution. The tension has also been manifest in the enactment of the European Communities Act 1972, by which the Westminster Parliament made domestic legal provision for the UK’s original inclusion in the European Communities. The tension was exacerbated by the unqualified assertion of the unconditional supremacy of Community law by the ECJ, both before and after the 1972 enactment. Through judicial minimalism or false economy - failure to acknowledge, explain and address pressing issues at stake - in the response of the highest British court to the ECJ’s assertion of supremacy, problems in the Westminster Parliament’s legal and political sovereignty were left unresolved and vulnerable to serious objection. They contributed to making the UK’s continued membership of the EU precarious and unstable. The doctrinal and constitutional options and implications for the UK are challenging, as are various searching questions for the EU.

Download the article from SSRN at the link.

Joshua Tate Speaks on Magna Carta and the Charter of the Forests at LSU

Via Aaron Sheehan-Dean, Fred H. Frey Professor of  History, LSU:

The Modern History Colloquium presents a lecture by Professor Joshua Tate (SMU Law School) "Magna Carta and the Charter of the Forests" on Monday, February 13 at 12:00 PM, 236 Coates Hall, on the LSU Campus.

The year 2017 marks the 800th anniversary of the Charter of the Forest issued by King Henry III of England. The Charter of the Forest allowed Englishmen to use certain common lands wrongly claimed by King John and his predecessors. Although the rights granted were narrower than the various procedural rights in Magna Carta, they had relevance for all the king’s subjects, not just the barons and great lords. This lecture will use these two charters as a jumping-off point for a discussion of what rights ought to be considered fundamental and whether Magna Carta deserves its longstanding reputation as one of the most important documents in legal history.

Joshua Tate’s research and teaching focus on legal history, property, and trusts and estates. He has been a full-time faculty member at SMU Dedman School of Law since the fall of 2005. He is currently engaged in a study of the development of property rights and remedies in medieval England, focusing on issues of jurisdictional conflict with regard to rights of presentation to churches. Society for Legal History.

Voss @Juss_Professor on the Royal Prerogative in Colonial Constitutional Law

Satvinder Juss, King's College London; Dickson Poon School of Law; A. Dickson Poon Transnational Law Institute, is publishing The Royal Prerogative in Colonial Constitutional Law as Chapter 11 of Landmark Cases in Public Law (Juss and Sunkin, eds., Hart-Bloomsbury, 2017). Here is the abstract.

The Chagos Islanders Case will be remembered for its abandonment of the common law’s affirmation of a Subject’s right to be free from exile, when more than a decade ago the British Government in the exercise of its imperial powers decided upon the permanent exclusion of an entire population from its homeland for reasons unconnected with their collective well-being. Paradoxically, freedom from exile is a right guaranteed in the folklore of the UK, as demonstrated only too vividly in the celebrations of the 800th Anniversary of Magna Carta in 2015. A judgment given by Laws LJ in the Divisional Court in 2000 when the matter first arose in challenge brought by Louis Oliver Bancoult, a Chagos Islander, against the actions of the British Goverment, and subsequently affirmed most resoundingly by Sedley LJ in the Court of Appeal in 2007, had upheld this historic right. They had held that government objectives could not lawfully be accomplished by the use of prerogative powers. The Crown has to exercise governance over the Colonies as a Crown function. The interests of these territories are not coterminous with interests of the UK state and its allies. The governance of each colonial territory is in constitutional principle a discrete function of the Crown. However, in 2008 the House of Lords (as it then was) overturned these decisions, only to revisit the question again in judgment delivered in 2016, thus demonstrating the particularly protracted and vexatious nature of the issues which the Government had sought to determine through the ill-judged mechanism of the Royal Prerogative. The Bancoult saga is the longest Supreme court case ever heard. The 2008 decision was not its last. In 2016 the Supreme Court gave a split decision, but which nonetheless still fully acknowledged that its earlier 2008 decision had moved the law forward and that, in the words of Lord Mance giving the majority decision (and who had also given judgment in 2008), the exercise of prerogative powers were “susceptible to judicial review on ordinary principles of legality, rationality and procedural impropriety.” Yet, the plight of the Chagos Islanders remained unchanged in 2008 as it did in 2016 – such that further legal challenges remain likely. The story is not yet over and this analysis is an attempt to locate the Bancoult litigation in its proper political context and to suggest that the House of Lords in 2008 could – and indeed should – have a taken a different decision for reasons connected entirely to the fact that the Government was using prerogative powers in the context of colonial governance.This has serious implications both for the future use of the Prerogative and for Public Law in general.

Download the chapter from SSRN at the link.

Tyler @profamandatyler on the English Habeas Corpus Act and the Statutory Origins of the Habeas Privilege

Amanda L. Tyler, University of California, Berkeley, School of Law, has published A 'Second Magna Carta': The English Habeas Corpus Act and the Statutory Origins of the Habeas Privilege at 91 Notre Damae Law Review 1949 (2016). Here is the abstract.

This Article tells the story of the English Habeas Corpus Act of 1679, which came in direct response to perceived failings by the royal courts and the common law writ to do enough to check executive excess at the expense of individual rights. Unearthing the story of the backdrop against which the Act was passed and tracing its role in English law going forward reveals that the Act was enormously significant in the development of English law’s habeas jurisprudence — far more so than most jurists and scholars recognize today. Further, extensive evidence of the Act’s influence across the Atlantic dating from well before, during, and after the Revolutionary War demonstrates that much of early American habeas law was premised upon efforts to incorporate the Act’s key protections rather than developed through judicial innovation. Further, there is every reason to believe that the Act, along with its suspension by Parliament on several occasions in the late seventeenth and eighteenth centuries, established the suspension model that the Founding generation imported into the United States Constitution’s Suspension Clause. Accordingly, in tracing the Anglo-American development of habeas corpus jurisprudence, it is important to account for the statutory roots of the habeas privilege, particularly because statutory developments were designed in important respects to alter and constrain the common law courts’ approach to habeas corpus and harness the common law writ toward specific ends.

Download the article from SSRN at the link.

Hulsebosch on English Liberties Outside England

Daniel J. Hulsebosch, New York University School of Law, is publishing English Liberties Outside England: Floors, Doors, Windows, and Ceilings in the Legal Architecture of Empire in the Oxford History of English Law and Literature 1500-1700 (Lorna Hutson, ed., Oxford University Press, forthcoming). Here is the abstract.

We tend to think of global migration and the problem of which legal rights people enjoy as they cross borders as modern phenomena. They are not. The question of emigrant rights was one of the foundational issues in what can be called the constitution of the English empire at the beginning of transatlantic colonization in the seventeenth century. This essay analyzes one strand of this constitutionalism, a strand captured by the resonant term, ‘the liberties and privileges of Englishmen’. Almost every colonial grant – whether corporate charter, royal charter, or proprietary grant – for roughly two dozen imagined, projected, failed, and realized overseas ventures contained a clause stating that the emigrants would enjoy the liberties, privileges and immunities of English subjects. The clause was not invented for transatlantic colonization. Instead, it had medieval roots. Accordingly, royal drafters, colonial grantees, and settlers penned and read these guarantees against the background of traditional interpretations about what they meant. Soon, however, the language of English liberties and privileges escaped the founding documents, and contests over these keywords permeated legal debates on the meaning and effects of colonization. Just as the formula of English liberties and privileges became a cornerstone of England’s constitutional monarchy, it also became a foundation of the imperial constitution. As English people brought the formula west, they gave it new meanings, and then they returned with it to England and created entirely new problems. Liberties and privileges claims fell into five functional categories. First, the claim that colonists abroad and their descendants enjoyed English liberties functioned as an open door, allowing overseas colonists to return home to England and be treated as equal English subjects. Second, the king or his colonial deputies might make positive grants of English liberties to subjects in a royal territory outside England as an inducement for English subjects to migrate there. Here, the grant of English liberties and privileges functioned as a window, a transparent promise of familiar and cherished rights to encourage settlement. Third, already by the time of the English Civil War and more frequently by century’s end, the colonists themselves sometimes claimed English liberties, privileges, and immunities abroad as a floor below which governors could not push. Fourth, in the reverse of the second, the claim that overseas subjects had to be governed according to English standards, including English liberties and privileges, could function as a ceiling on colonial innovation. It was a ceiling measured by metropolitan officials, especially the Privy Council as it reviewed colonial statutes and judicial cases to ensure that they were, in the familiar language of colonial grants, ‘agreeable’ with and ‘not repugnant’ to the laws of England. Finally, colonial assumptions of English liberties functioned as a mirror through which colonists could see themselves as English, even when their colonial rights, such as their property rights, were viewed at home as peculiar. If for example a subject of the English king in an overseas dominion owned slaves in that dominion and wished to sojourn home, could he bring his slaves? Could he carry the rights of a Virginian or Jamaican with him to England and enjoy those rights there? Collapsing English and local liberties, slaveholders argued affirmatively. As Englishmen they should, they thought, be able to move around the empire with their property, including human property.

Download the essay from SSRN at the link.

Tidmarsh on the English Fire Courts and the American Right to a Federal Civil Jury Trial

Jay Tidmarsh, Notre Dame Law School, is publishing The English Fire Courts and the American Right to Civil Jury Trial, in volume 83 of the University of Chicago Law Review. Here is the abstract.

This Article uncovers the history of a long-forgotten English court system, the “fire courts,” which Parliament established to resolve dispute between landlords and tenants in urban areas destroyed in catastrophic fires. One of the fire courts’ remarkable features was the delegation of authority to judges to adjudicate disputes without juries. Because the Seventh Amendment’s right to a federal civil jury trial depends in part on the historical practice of English courts in 1791, this delegation bears directly on the present power of Congress to abrogate the use of juries in federal civil litigation. Parliament enacted fire-courts legislation on eight occasions between the mid-seventeenth century and the nineteenth century. The Article particularly emphasizes the first and largest of these courts, established after the Great Fire of London in 1666. Archival research into 1,585 cases resolved by the London Fire Court reveals that the Court never employed juries to resolve contested factual matters. The Article argues that the history of these courts provides a limited but clear power for Congress to strike civil juries in federal court.

Download the article from SSRN at the link.

Schneiderman on Lord Durham's Theory of the Imperial Constitution

David Schneiderman, University of Toronto Faculty of Law, is publishing Dividing Power in the First and Second British Empires: Revisiting Durham's Imperial Constitution in the Review of Constitutional Studies. Here is the abstract.

In his Report on the Affairs of British North America, Lord Durham proposed that “internal” government be placed in the hands of the colonists themselves and that a short list of subjects be reserved for Imperial control. Janet Ajzenstat maintains that Durham did not intend to formally restrict the authority of the new colonial legislature by dividing power. This paper argues otherwise: that Durham’s recommendation fell squarely within a tradition of distinguishing between the internal and external affairs of the colony. This was the imprecise but pragmatic distinction that American colonists invoked during the Stamp Act crisis as a means of curtailing imperial authority over internal taxation while maintaining their allegiance to the British Crown. It also was a division that Charles Buller relied upon in a constitution for New South Wales that he proposed prior to sailing to Canada as Durham’s principal secretary. Durham likely was drawing upon this tradition when he made his recommendation, a distinction that began to crumble away almost immediately. In the result, Canadians inherited a robust semblance of self-government, just as colonists during the Stamp Act crisis had desired, but without the need for revolution.

Download the article from SSRN at the link.

Simon Chesterman On the Myth of Magna Carta

Simon Chesterman, National University of Singapore, Faculty of Law, has published The Myth of Magna Carta — Or, How a Failed Peace Treaty with French Aristocrats Was Reinvented as the Foundation of English (and American) Liberty. Here is the abstract.

Magna Carta bears an iconic status in legal history. Signed eight centuries ago by King John at Runnymede, near Windsor, it laid the foundations for constraints on arbitrary power — the basis for the rule of law, democracy, and human rights. The only problem with the historical account is that almost none of it is true. The agreement at Runnymede was not a constitutional document intended to limit power but a peace treaty to preserve the King’s rule. Despite many paintings and a commemorative £2 coin showing him holding Magna Carta and a quill, King John never signed it. Oh, and it was not called Magna Carta.

Download the article from SSRN at the link.

The Role of Emotion In English Law and Legal Theory

For those of us who think the English are dour or lack affect,, and that English lawyers are more of the same, a new book offers to change our views. Newly published by Bucknell University Press is Impassioned Jurisprudence: Law, Literature, and Emotion, 1760-1848, edited by Nancy E. Johnson. Here is a description of the contents from the publisher's website.

In this volume of essays, scholars of the interdisciplinary field of law and literature write about the role of emotion in English law and legal theory in the late eighteenth and early nineteenth centuries. The law's claims to reason provided a growing citizenry that was beginning to establish its rights with an assurance of fairness and equity. Yet, an investigation of the rational discourse of the law reveals at its core the processes of emotion, and a study of literature that engages with the law exposes the potency of emotion in the practice and understanding of the law. Examining both legal and literary texts, the authors in this collection consider the emotion that infuses the law and find that feeling, sentiment and passion are integral to juridical thought as well as to specific legislation.

Includes an introduction by Nancy E. Johnson, Simon Stern, Blackstone's Legal Actors: The Passions of a Rational Jurist, Nancy E. Johnson, Narrative Sentiment in Adam Smith's Lectures on Jurisprudence, J. T. Scanlan, Love and the Law in Boswell's Development as a Writer in the Late 1760s, Melissa J. Ganz, Freedom and Fetters: Nuptial Law in Burney's The Wanderer, Erin Sheley, Doubled Jeopardy: The Condemned Woman as Historical Relic, Peter de Bolla, The Madness of Sovereignty: George III and the Known Unknown of Torture, Ian Ward, The Great Dramatist: Macaulay and the English Constitution. Also includes a Timeline of Selected Legal Publications, Legislation, and Events, and a Bibliography.



 
 

The Statute of Northampton and Carrying Weapons In Public

Clayton E. Cramer, College of Western Idaho, has published The Statute of Northampton (1328) and Prohibitions on the Carrying of Arms. Here is the abstract.

The Statute of Northampton (1328) has been claimed as an ancient prohibition on civilians carrying deadly weapons in public. Analysis of its history and subsequent interpretation reveals otherwise.

Download the article from SSRN at the link.

King John and the Church

Joshua C. Tate, Southern Methodist University School of Law, has published Episcopal Power and Royal Jurisdiction in Angevin England in Studies in Canon Law and Common Law in Honor of R. H. Helmholz, Robbins Collection Studies in Comparative Legal History 15-26 (Troy L. Harris ed., 2015). Here is the abstract.

During the second half of the twelfth century, powerful and charismatic bishops presented a threat to the emerging jurisdiction of the king’s courts. By contrast, King John was able to fill key episcopal vacancies with loyal bureaucrats who acted as servants to the king. This paper will consider how the assertion and subsequent cession of power by English bishops under the Angevin kings shaped the developing jurisdiction of the common-law courts, particularly in disputes over advowsons, or rights of presentation to churches. The evidence suggests that the bishops played a significant role in the development of the early common law, first by sending litigation into the king’s courts and later by declining to challenge the primacy of royal jurisdiction.

Download the essay from SSRN at the link.

The Narrative of Sovereign Immunity

Marc Lane Roark, The Savannah Law School, is publishing Retelling English Sovereignty in the British Journal of American Legal Studies. Here is the abstract.

Sovereign immunity is a legal fiction that forecloses the possibility of the government being hailed into court, except by its own permission. The fiction draws on narratives about kingship and realm, state and church, and property and owner that help shield the sovereign from challenges to its authority. This Article argues that sovereign immunity’s legal sources relied on relationships between king and church, king and property, and king and constitution to articulate an authority that could not be challenged by its subjects. This Article suggests that, absent other normative stories that support sovereign immunity, the doctrine remains empty of substance other than the legitimating of authority in the face of legal challenges.

Download the article from SSRN at the link.

Eight Hundred Years of Magna Carta

Thomas J. McSweeney, William & Mary Law School, has published Magna Carta, Civil Law, and Canon Law in Magna Carta and the Rule of Law (Daniel Magraw et al., eds.; 2014). Here is the abstract.

With the 800th anniversary of Magna Carta approaching, interest has been piqued in the charter, which influenced the development of the common law in its early stages. One debate surrounding the charter is the degree to which Roman and canon law influenced the text. This debate has important implications for the identity of the common law. We tend to think of common law as an English institution, very different from those continental civil-law systems that trace their ancestry back to medieval Roman and canon law. If Roman and canon law influenced the charter, it could serve as evidence that the early common law was not so insular in its outlook as we have thought, and that it really should be placed in a broader European context.

Roman and canon law — collectively called the ius commune in the Middle Ages — certainly made their mark on Magna Carta, but this paper argues that the elements of the ius commune that found their way into Magna Carta were inserted not to influence the early development of the common law, as many scholars have assumed, but rather because ius commune, and more particularly canon law, was a political language that appealed to various important constituencies in England and abroad. Appeals to canon law in Magna Carta were more likely placed there to elicit support from the papacy than to reform English law. This paper places Magna Carta in the longer context of the Church reform movement and its instantiation in England — the Becket dispute — and argues that Magna Carta’s ius commune-influenced provisions were attempts by English actors to give universal significance to their local disputes.

Download the essay from SSRN at the link.

Parliamentary Habeas Proceedings in the Reign of James I

Donald E. Wilkes, Jr., University of Georgia Law School, has published Habeas Corpus Proceedings in the High Court of Parliament in the Reign of James I, 1603-1625 at 54 Am. J. Legal Hist. 200 (2014). Here is the abstract.

English parliamentary habeas corpus proceedings have been neglected by scholars. This Article ends that neglect. This Article focuses on the parliamentary habeas corpus proceedings that occurred in the reign of King James. The Article corrects several misunderstandings relating to the history of the writ of habeas corpus in England and to the history of the English Parliament (which in the seventeenth century commonly was referred to as the High Court of Parliament).

Part I of the Article provides answers to questions concerning the historical background and context of the parliamentary habeas corpus proceedings in the High Court of Parliament during James I's reign. What was the origin and significance of the term High Court of Parliament? What was the parliamentary privilege of freedom from arrest, the violation of which could lead to the granting of habeas corpus relief by the House of Lords or the House of Commons? What was the civil arrest system in effect in seventeenth century Englanda system which made it likely that from time to time the parliamentary privilege from arrest would be violated and the parliamentary habeas remedy thereupon invoked? What other remedies, apart from habeas corpus, were available to deal with infringements of the parliamentary arrest privilege? And what were the contours of the parliamentary habeas corpus remedy itself, which appears not to have been successfully invoked prior to the reign of James I?

Parts II and III conclusively demonstrate that in the reign of James I the High Court of Parliament at times functioned as the High Habeas Court of Parliament. Part II provides an in-depth account of the habeas corpus proceedings in the House of Lords in the reign of James I, while Part III does the same for the habeas corpus proceedings in the House of Commons during the reign.

The Article concludes with a detailed discussion of the three major changes this work mandates in our understanding of English legal history.

Download the article from SSRN at the link. 

George IV's "Great Matter"

Erin L. Sheley, George Washington University School of Law, is publishing Adultery, Criminality, and the Myth of English Sovereignty in volume 11 of Law, Culture, and the Humanities. Here is the abstract.

This article argues that in Britain over the course of the eighteenth and nineteenth centuries, the understanding of adultery as a tort was complicated by an accompanying discourse of what I will call “quasi-criminality.” Specifically — while formally trivialized — adultery remained linked to a threat to British kingship. The tension between the weight of relevant monarchical history and the absence of contemporary criminal enforcement created a new cultural narrative about adultery which attempted, itself, to serve a penal function. Examining the development of this discourse alongside the relevant law illuminates the complex social process through which public and private wrongs become distinguished — or conflated.

Download the article from SSRN at the link. 

The Development of Culture and Legal Institutions In Seventeenth Century England

Peter Murrell, University of Maryland Department of Economics, and Martin Schmidt, University of Maryland, College Park, have published The Coevolution of Culture and Institutions in Seventeenth Century England. Here is the abstract.

We examine how cultural and institutional development interact with each other over time, constructing new annual measures of cultural dynamics and institutional development for a paradigmatic episode of change, seventeenth century England. The institutional measures reflect citations of cases and statutes appearing in later legal decisions, thereby capturing the growth of formal legal institutions weighted by usage. The cultural measures reflect frequency of word use in publications, interpreted using a model of social learning that elucidates the relationship between cultural diffusion and word frequency.

 We find that institutional development takes place over the whole period that we study (1559-1714). Especially fecund years are from the mid-1580's to the mid-1620's and from 1660-1680. There is no indication that the Glorious Revolution of 1688 spurred institutional development. The diffusion of modern ('whig') political culture is much more concentrated in time than is institutional development. Until 1640, the diffusion of whig culture is limited, but then dramatic change occurs, with over half of the cultural diffusion that we focus upon completed by 1660. The process of cultural change was largely completed by the time of the major constitutional legislation of the late 17th century. Vector-error-correction estimates of the relationships in the annual data suggest that culture and case-law coevolve but that statute law is a product of the other two.

Download the paper from SSRN at the link.