SKIM ONLY
(**NOTE**:  Remember---these are only ROUGH LECTURE NOTES in prose form
to make following lectures a bit easier. In lecture, I will update and
tailor and add/delete as needed, so these are not only rough, but
partial and incomplete)

         THE SOCIOLOGY OF LAW: A HISTORICAL PERSPECTIVE

                           Jim Thomas
                     Department of Sociology
                  Northern Illinois University
                       DeKalb, IL (60115)
         (started 15 January, 1997 - ongoing through 2008)


                         1. INTRODUCTION

These comments are LECTURE NOTES,  not a paper.t I have attempted
to put together,  in coherent form,  the discussion of the first
few weeks on the history of law.   The course takes a historical
perspective,  and this paper lays  out the fundamental ideas we
will be discussing.

PROLOGUE

In recent years,  law has become a battleground for competing ideas,
ideologies, and shaping social issues such as civil rights, presidential
elections, and culture itself. Terms such as "Nanny-gate," and "Borking" have
been introduced into our cultural language  as the result of bat-
tles over confirmation of nominees to the US Supreme Court.   Al-
though ideologically partisan,  the roots of the conflicts have a
long history,  and this is why  we will address a few historical
issues in this course.

A historical perspective is especially  useful because of the de-
bates over the confirmation of US  Supreme Court nominees in re-
cent years. The basis of the debates lies on ideological grounds,
especially as contained  in the opposing perspectives  of legal
fundamentalism and "living  law." There are two  sub-issues in-
volved.  First, some observers claim that the president alone has
the power and authority to appoint  judges to the federal bench.
Opponents claim that it is the right of the Senate, who,  by con-
stitutional directive,  may oppose any appointment.   Both views
are correct.  The Constitution says:

     He [the President] shall have  power,  by and with the
     advice and consent of the  Senate,  to make treaties,
     provided two-thirds of the Senators present concur; and
     he shall nominate,  and by and with the advice and con-
     sent of the Senate,  shall appoint ambassadors,  other
     public ministers and consuls,   judges of the Supreme
     Court,  and all other officers  of the United States,
     whose appointments  are not herein  otherwise provide
     for,  and which shall be established by law:  but the
     Congress may by  law vest the appointment  of such in-
     ferior officers, as they think proper, in the President
     alone, in the courts of law, or in the heads of depart-
     ments [U.S. Constitution, Article II, Section 2.2].

The language may seem clear, but the meanings of it are, in fact,
complex and open to considerable  room for debate.   Some argue
that the language explicitely allows  the Senate to intervene and
reject appointments they do not  feel proper.   Others disagree,
and argue that the Senate is "changing the rules in the bottom of
the ninth inning." By looking at the history of law,  we can bet-
ter understand both sides of this issue.

The second sub-issue involves the  nature of legal fundamentalism
and the doctrine of original intents.   The Reagan administration
has strongly argued that federal judges  should not "make law" by
reading new meanings into the Constitution.  Judges should, it is
argued,  rely on what the founders "really meant" or "really in-
tended." Opponents of this view counter  by arguing that the Con-
stitution is a living document, and that judges, by the nature of
our democracy, must develop new meanings to adjust old law to new
situations.  Both sides have some merit, but each can be examined
within the context of the historical  evolution of law to deter-
mine which is most convincing[1].

By looking at the history of law,  we can obtain a better under-
standing of the issues involved,   and clarify our own personal
views.

SOME PRELIMINARY ISSUES

There are several themes we  will address.   of the relationship
between social change and the form and content of law.   By form,
we mean what law is supposed to do,  how it is practiced and ap-
plied, the logic and structure of the rules,  and the procedures
that guide its application.   By content,  we mean what the law
says,  both as written in statutes and as developed through case
law (judicial decisions).   Too many people  think of the law as
"simply there," as something more  or less permanent,  and some-
thing that is "sacred." However, societies change and laws change
with them.  The concept of "civil rights" is historically recent,
and changing social  definitions of this concept  have required
considerable legal change,  both in what laws say and in how law
is applied.

A second issue is that of law  as a normative system.   For some
scholars,  laws reflect social consensus,  or agreement by most
citizens on how people and government should behave.  For others,
especially Marxists and conflict theorists, laws reflect not har-
mony and agreement, but rather symbolize disagreements and social
conflict. This, these theorists argue, is why we need law: To re-
solve disagreements that cannot be  resolved through other means.
By a normative system, we mean the sum of the values, traditions,
customs, mores and folkways (and, of course, laws) that guide be-
havior and provide sanctions (rewards or punishments) for obeying
and violating expectations.   We often are able to recognize how
traditions and values change,  but are  not as able to recognize
how law should or does accommodate these changes.   For example,

in the past century,  the traditional role of women has changed,
and the  former values  that shaped  women's roles  have also
changed. Yet, many observers suggest that law, especially consti-
tutional law, should not necessarily reflect these changes,  be-
cause it is the domain of the states, not the federal government,
that is most responsible for such accommodation.

A third  issue underlying the social  bases of law is  that of
ideology.   Law reflects social ideals, distribution of political
power, and above all,  a "proper order of things." These are all
tied to fundamental concepts that various groups think are impor-
tant for a smoothly running society.   By examining the relation-
ship between ideology and law,  we can better understand the com-
peting views on the role of law in society.

A fourth issue,   that of the relationship between  law and the
state,  is important for examining  how social power has shifted
from states to the federal government in the past century.   This
shift has not occurred overnight,  and it has not occurred simply
because "liberal" judge have engaged  in judicial activism.   It
has occurred because of complex changes in society, including the
growth of business,  the recognition  that some groups have been
dispossessed of rights,  the  increasing homogeneity of culture,
and other factors that create social conflict.  The federal gov-
ernment has assumed more responsibility  for resolving these ten-
sions, and law has been one strategy by which it is done.
A final issue is that of social practice.   Law does not exist in
a vacuum, but is the product of people creating a social order to
their liking.  As a social product, law is a form of human activ-
ity by  which conflicts  over social  power and  resources are
fought,  and through which previously disempowered groups attempt
to resolve problems or attain rights.   As a consequence, we can-
not understand the relationship between  law and society without
understanding the role of human activity as the fount of law.

A COMMENT ON IDEOLOGY

We have argued that any view of law reflects an ideology.   It is
therefore useful to briefly define what an ideology is.

Definition of Ideology

An ideology refers to those beliefs, attitudes, and basic assump-
tions about the world that justify,   shape and organize how we
perceive and interpret the world.   An ideology underlies norms,
laws and values.   It is a set of the most-basic assumptions and
rationalizatons about our social world.  Examples include the be-
lieve in "justice  for all," which guides  the criminal justice
system;  "one person one vote," "my  country right or wrong" and
"equal opportunity," which guide  our political process;  "women
should not receive  equal pay for equal work," or  "women do not
belong in grad  school taking up slots men  should have," which
guides gender relations; "free enterprise," which guides our eco-
nomic system,  and other beliefs by which we defend "what is." An
ideology provides the basic framework  for decisions and policies
about the social world and political activity.   more specifical-
ly, ideologies are the conceptual machineries for maintaining so-
cial order.

Ideology,  as Marx suggests,  reflects a "false" or "distorted"
consciousness in that it prevents us  from seeing the world as it
"really is" in that  we do not question that which  we accept as
"normal."  The trick is to  identify the ideological constraints
that block our understandings of the world.
Ideologies tend to be views of  the world,  but they are partial
and incomplete, not because they are necessarily wrong,  but be-
cause of the questions that we do not ask.   We seldom, if ever,
question our  beliefs and assumptions  about the nature  of the
world or the social order  which ideologies sustain and preserve.
This is what we mean by  "distorted"--they may be appropriate for
a given social order or historical period,  but they do not ade-
quately portray the actual social relations that exist.   Ideolo-
gies create and generate the ideas, concepts, etc, appropriate to
our social world, and also LEGITIMIZE and promote particular con-
ceptions of the way things OUGHT to be.
Ideologies have several features:

   1.  They are PRECONSCIOUS
   2.  They are emotionally charged
   3.  They are shared among a large group of individuals;  (ie,
       are NOT  simply individual attitudes,  but  SOCIAL con-
       structs)
   4.  They contain assumptions about the  state of the world and
       how it OUGHT TO BE
   5.  They are DISTORTED pictures because  they are limited and
       partial (and they thus  generate "false consciousness" be-
       cause they are incomplete.

The functions of ideologies include, but are certainly not limit-
ed to the following:

   1.  Justifying the status quo
   2.  They guide the activity and  policy of a particular group
       (eg, the state, legislature, judiciary, etc)
   3.  They maintain the dominant position  of those who are able
       to 'Name the world."
   4.  Ideologies are  one form of noncoercive  social control.
       There are different ways to control people.  We can do it
       by a) force (inappropriate for most things) or b)  by con-
       trolling symbols.   IDEOLOGY IS THUS A WAY OF CONTROLLING
       WITHOUT VIOLENCE OR COERCION.   This may seem like common
       sense,  but it is one thing to recognize that control ex-
       ists, and quite another to demonstrate how it operates, in
       whose interests,  and how it can be addressed through so-
       cial policy.

In short, ideology guides and shapes and justifies our practices.
To understand social inquiry,  it is thus useful to first under-
stand the role ideologies play in blocking our vision of society.
In short,  ideologies contain the major conceptions and the sym-
bols accumulated in our culture,   and represent views of social
order,  right and wrong and identify who should or should not be
subject to control, processing, and punishment.
We discuss ideology for several reasons:

   1.  It helps us understand the  complex nature of social control 
       (it's  easier to  control behavior  by controlling ideas).

   2.  It helps illustrates contradictions and tensions in socie-
       ty (for example, between opposites,  such as gun control/
       anti-gun control;  right-to-life/right to choose;  Death
       penalty/anti-death penalty).

   3.  Iit illustrates  how the state functions  to manufacture
       ways of seeing and talking about the social world (ie,  it
       presents accounts  and rationales to  legitimize actions,
       such as intervention in state affairs, protecting rights.

   4.  It helps helps us guide our  analysis of society and helps
       set strategies for SOCIAL POLICY.

Most simply,  ideologies are one of the most fundamental aspects
in the relationship  between law and society,  for  it not only
shapes our view of law, but also shapes how we live within a sys-
tem of laws.

A HISTORICAL SUMMARY

Our discussion begins with English law, but,  obviously,  law in
both written and unwritten form has existed for many thousands of
years.   To provide a background to the emergence of English law,
a short discussion  of the pre-English roots  might be helpful.
The Emergence of Law

Law is one of many element shaping human behavior,  and it mobi-
lizes the force of organized  society to regulate individual and
group conduct to prevent,  redress or punish deviations from pre-
scribed social norms.  Law's purpose is to mold individual behav-
ior in accordance with pre-established  patterns imposed by indi-
viduals who play the role of "authority."

Do societies need laws?   When people can't agree on essentials,
or if they can't trust each other,  they may put rules and rela-
tionships into writing, and make use of or create formal institu-
tions (courts, special division of labor, police,  arbitrators).
This formality changes how people relate to each other.   For ex-
ample, what, for U.S.  citizens,  becomes a domestic dispute in-
volving police in a situation of extreme domestic violence,  may
in some societies,  such as China,  be a matter for neighborhood
arbitration committees.

In any society, laws, as we define them,  possess several charac-
teristics.  First, laws contain symbols. Laws symbolize "correct-
ness," norms, values, traditions,  power hierarchies,  and other
social attributes.   Second, they must be codified, or "made per-
manent," in some fashion, usually through writing.   Third, there
must exist a method of  enforcement.  These can include police,
"magic," social pressure, or some other force that enables socie-
ty to punish or reward members.   Fourth, there must be something
to enforce, such as a behavior ("thou shalt not kill")  or a so-
cial group (tall  people cannot live in  this city).   Finally,
there must,  obviously,  be something  specific to be enforced.
Laws are not general, but specific.  In this form, laws have been
with us for several thousand years.

Ancient Law

Hammurabi.   The concept of personal  justice is visible in all
early laws, and most historians, for convenience, data the begin-
ning of law to Hammurabi,  a Babylonian king (circa 1,800 b.c.).
Hammurabi inherited a large territory  from his father,  and to
simply its administration, he codified (wrote down)  the existing
norms and practices of the time.  He did not create new laws, but
simply pulled together those rules  that already existed.   His
codes added much to our knowledge of law in the ancient near east
during this period and shed light on the later codes (e.g.,  new
testament derived from these),  indicating  that our legal ideas
have much in  common with a broader foundation  handed down many
millenniums ago.   The basic model, or theory, of justice in Ham-
murabi's system was lex talionus, or "an eye for an eye." In this
model of personal justice, an offender was punished by submitting
to a punishment roughly comparable to the original offense.  This
did not necessarily mean that the  offender would under the exact
same fate as  he or she perpetrated,  but  rather "values" were
place on offenses that were considered comparable.   For example,
if you stole a neighbor's cow, you would have to replace it,  but
if you were responsible for the accidental death of another,  you
would not necessarily be killed, but might lose a hand.
The Code of Hammurabi is  first comprehensive legal document that
has come down to us virtually intact, although it appeared sever-
al centuries after that of Ur-Nammu, a Summerian king, whose laws
are the most ancient discovered  to date.   Hammurabi's laws re-
flect the importance of rich  agricultural traditions in ancient
Babylonia and how social structure is entwined with it.

Biblical Law.  Biblical law (or Mosaic law, because it was "hand-
ed down by Moses"), was based on vengeance and retribution.   For
example,  a man falsely accusing his  wife of being a non-virgin
would be whipped,  but if the woman was not a virgin when wedded,
she was to be stoned to death.  Pre-marital sex, in fact, was, in
most cases, punishable by death (Deuteronomy, 22:13-22-28).   Mo-
saic law included 36 capital crimes,   punishable by any one of
four methods of death: stoning, burning, decapitation or strangu-
lation.   Hebrews drew no real distinction between religious and
secular norms---the two types were formally identical (e.g,  all
laws came from God,  and  if punishments followed the prescribed
format laid out  by Moses' summary,  then  justice was served.
There were punishments, equally harsh by today's standards,  for
other offenses,  and some groups retain the view that the literal
interpretation of social  responses to crime is  preferred over
more recent ones.

It should be remembered that  Mosaic law reflected what Durkheim
would call a mechanism for integrating diverse tribes into a com-
mon group,  and many of the rules were centered around strategies
to maintain social cohesion and common practices.   In exile and
subject to the power of other nations, Jews inevitably had to re-
ly heavily upon group pressure  and threats of supernatural sanc-
tions to gain conformity to edicts.   The fundamental premise of
Hebrew jurisprudence was  that the revealed will of  god was the
sole source of legislation.   Consequently, every punishable act
constituted a violation  of god's will,  and  every offense is
termed in the  Talmud "Aberrh," meaning a  transgression against
God.  In this system, offenses were neither against the individu-
al nor against society, but against a supernatural being who com-
manded vengeance.   But this slowly changed as the Greek system,
which heavily influenced our own, evolved.
Greece and Rome (1,200 to 300 b.c.)

Our own law has been shaped by Ancient law,  but these laws took
many forms and emerged gradually over several thousand years.
The Homeric Era.   In The Illiad and The Odyssey, Homer provides
partial insights  into "norm enforcement."  Criminal procedures
were relatively primitive, and the blood feud,  a system in which
wrongs were avenged by the victim's family,  provided the primary
mechanism for punishment of major offenders.   In The Illiad, for
example, when Agamemnon's wife, Helen, was kidnapped by Paris and
taken to Troy, Agamemnon enlisted his family, friends,  neighbors
and allies to avenge the crime.   Paris' act was not considered a
wrong against Agamemnon's kingdom or against society,  but an act
against an individual, and it was the responsibility of the indi-
vidual to avenge it.   Although this was a dramatic example,  it
provides insights into the relationship  between offense and so-
cial control.    Families were expected  to respond  to wrongs
against individual members, usually "in kind, plus,"[2] and,  in
principal, the matter was resolved. But this led to problems, es-
pecially when an offender claimed  innocence,  and vengeance was
sought anyway.   For this reason, blood feuds were often, as the
name implies, quite bloody, and could last for many years, either
until families were too drained to continue,  or until there were
no family members remaining who wished to pursue the feud.   Al-
though this system of justice is  not common to the U.S.,  there
are examples of  members of other cultures continuing  a feud in
this country that was begun in their own.  An example occurred in
Detroit,  where police arrested a man  for murder who claimed he
was simply avenging a wrong done  to a family member.   He could
not understand why he was being prosecuted.

Obviously,  this system of justice could be disruptive to the so-
cial fabric.   Valuable laborers were killed or maimed, economic
productivity was channeled into vengeance rather than more useful
outlets, social affairs were disrupted,  and normal life for some
families on occasion ceased.   It was  left to Solon (circa 594
b.c.) to end the system.

Solon.  Solon was a King in Athens in the late sixth century.  He
was also called "The Law Giver," because he reformed the existing
system of justice.   He rewrote laws  so that they "made sense,"
tried to establish a uniform  method of application,  and above
all, he declared an end to the blood feud.   In addition, he in-
troduced several new procedures of justice.  One of the most im-
portant of these  was the procedure in which  an offended party
could appeal to the state for resolution.  More simply, Solon es-
tablished the right  of Athenians to prosecute  other citizens.
Law was slowly  evolving from a crime against  an individual or
group that required response from that group, but a crime against
the state.

Solon was not completely successful in his reforms.  For example,
the blood feud, although dramatically curtailed,  did on occasion
persist. The notion of "crime against the state" was not yet ful-
ly developed, and the system depended largely on the ability of a
single "wise counsellor," the king, to resolve complaints.  There
was,  as yet,  no adequate formal mechanism for processing com-
plaints.   Nonetheless,  the recognition that law,  rather than
naked force,  was useful in maintaining social stability was es-
tablished.  One of the most important consequences of this period
was the emphasis put on the philosophical discussions of abstract
principles of law.  This occurred especially during the Hellenis-
tic period.

Roman Law.   Roman law begins with  the Code (or Twelve Tables),
which date from the 5th century  b.c.  These were not systematic
statements of law,  but a summary of customary norms.   As with
Hammurabi, didn't give laws,  but reflected existing expectations
and traditions.  Roman law evolved over nearly 1,000 years (about
300 bc to 500 a.d.)  and  was heavily influenced by Greek tradi-
tions.   At first Roman law was primarily restitutive (eg,  law
primarily used to determine compensation for offenses.   This is
significant,  because a "crime" was seen as and act between indi-
viduals, not as an offense against the state.  which required Of-
fenses required mediation, because offenses were situational, and

punishments could not be applied  literally by following a rigid
list of appropriate responses.   Instead,  aggrieved parties and
offenders had to  be called before a magistrate  and both sides
heard, then evaluated,  and only then could the punishment be as-
sessed in the context of the behavior.   In Rome, the first true
"legal profession"  gradually developed  (circa second  century
a.d.),  and Roman jurists began writing texts and commentaries on
particular laws and also worked with legal concepts, much as they
do today.

The Justinian Codes.  By the sixth century a.d., both the content
and practice of law had evolved into a complex system.   This was
in part the influence of the Church, that had developed a sophis-
ticated administration and set of procedural rules,  and because
of the Roman tradition (that,  of course,  influenced the struc-
ture,  although not the content,  of ecclesiastical (or Church)
law.   The emperor Justinian recognized the unweildy set of laws,
many of which were contradictory,  and the difficult practices of
implementing them,  so he set about to reform both the letter and
application of his legal system.   His laws attempted to combine
aspects of ancient law with the Roman system,  but his ideas re-
quired a cumbersome bureaucracy to make it operate.but required a
cumbersome bureaucracy---Some of the features  of his law includ-
ed:

   1.  An attempt to establish scales of justice and fairness.
   2.  The belief that  a crime and its punishment  must be bal-
       anced.
   3.  The view that law was universal, and had to applied equal-
       ly to all cases without  the penetration of biased discre-
       tion of officials.
   4.  The recognition that law requires an "official apparatus,"
       not simply a number of skilled practitioners or wise coun-
       sellors, if it is to be consistently effective over a long
       period of time.
   5.  The emphasis on a specialized  division of specialized la-
       bor responsible for implementing  the various administra-
       tive tasks required for the legal process.

The Justinian Codes did not survive the demise of Rome,  but they
did creep back into the laws of  western Europe over the next few
centuries,  especially in the Germanic kingdoms and especially in
the English system.  However, by the middle ages, laws were a me-
lange of Roman and home-spun elements.
Law changes slowly, and we are often unable to recognize the fac-
tors that shape our own justice system.  Because our own philoso-
phies and procedures  have been significantly shaped  by Judaic,
Greek and Roman law,  it may be easier to understand how our own
system itself is in a state of continual, albeit gradual,  tran-
sition.

SUMMARY

The purpose of this introduction has  been to show that there are
many issues underlying the relationship  between law and society,
and that by understanding the history  of law,  it is easier to
view this relationship.   Our own legal system can be traced both
procedurally and philosophically back at least to ancient Greece,
but the more recent roots are found in English law.   We now turn
to these roots.

One final comment.   There are references throughout  to civil
rights litigation by prisoners,  which is a theme I use for exam-
ples.  This will be explained periodically in class.   Briefly,
prisoner litigation are  those suits filed by  people in correc-
tional facilities  that challenge the conditions  of existence.
This topic provides a useful set of examples,  because it raises
questions of judicial domain,  judicial review,  states' rights,
changing concepts of law, social control,  and other factors un-
derlying the transformation of legal principles and ideology.

2. THE ENGLISH LEGACY AND ITS SOCIAL ROOTS: 500-1214

     The greatest of all legal fictions  is that the law it-
     self evolves, from case to case,  by its own impartial
     logic, true only to its own integrity,  unswayed by ex-
     pedient considerations (Thompson, 1975: 250).

Law, to borrow a metaphor from the seventeenth century jurist Sir
Matthew Hale (1971:  40), is like Jason's ship the Argos.   Al-
though it appeared upon return the same as when it departed, dur-
ing its long voyage virtually every part was replaced.  Thus, de-
spite the appearance of sameness,   changes altered its essence.

Law, too,  is continually changing,  such that we often fail to
recognize that, despite the illusion of permanency, it is contin-
ually transformed by powerful social forces that inexorably modi-
fy both its form and content.   Thus,  although our contemporary
system of laws and procedures may  appear to conform to some in-
ternally consistent logic or to be derived from established prin-
ciples, the structural relations on which it is based are contin-
ually in flux, and the concepts of freedom, equality,  protection
of property and due process are changing also.  Ignoring our his-
torical antecedents contributes to the  perception of ours as an
immutable legal structure,  thus preventing us from understanding
the expansion of,  for example,  existing rights to persons who
were previously unprotected.   As a consequence, we often fail to
recognize the processes  of change in our own  system,  and our
judgments and subsequent judicial policies thus become misdirect-
ed, misunderstood, or simply misplaced.  Nowhere is this more ev-
ident than in interpretations of the relationship between federal
judges and  the U.S.    Constitution.   Especially  since the
mid-1960s, critics have observed an "erosion" of fundamental Con-
stitutional principles by activist judges  who would rather "set
policy" than interpret established law (Bork, 1971; Duscha, 1969;
Morgan, 1984;  Meese, 1985, 1986).   This view, however, glosses
over the latent "living law" aspect  of our judicial system which
allows for,  and in fact  requires periodic judicial revision or
rejection of statute law in light of changing social,  political,
or ideological practices.   By ignoring  our historical roots we
also tend to ignore the commonality that the U.S.  system shares
with the English legal tradition dating back a millennium.
At stake in  the debates over legal fundamentalism  are the con-
cepts of judicial review, the weight of common law, and how these
and related legal concepts change.  Judicial review, for example,
has referred historically to the power  of a court to decide the
scope of authority  of specific legislation or  court decisions.

These common law roots of judicial review,  however,  have been
radically modified,  and now provide judicial authority to review
both law and  activities under "color of law"  if they conflict
with  broader,  more  fundamental legal  norms or  philosophy
(Schmeiser, 1965: 22).   This latter view is the basis of current
civil rights litigation,  and provides as well the authority for
federal courts to monitor and intervene in prison administration,
criminal procedures,  hiring practices,  university policies or
church-state issues.  Much of the current debate over the legiti-
macy of  courts to intervene in  state affairs also  depends on
whether one subscribes to a common law or "living law" concept of
the Constitution.  Those adhering to common law, or "antiquarian-
ism," argue that past precedents ought to be the basis of current
decisions stare decisis.   In this view, primacy is given to the
stability of law established by the "test of time" thesis,  which
holds that only  those decisions which are sound  will last and
therefore should be employed to guide current judicial decisions.

In this view,  courts have violated the centuries-long tradition
of "hands off" in prison cases, thus violating the intents of the
framers of the  Constitution and its foundations  in common law.
Those advocating the living-law perspective  opt for the primacy
of contemporary needs over "archaic decisions." In this view,  it
is the spirit, rather than the letter of the law, that is granted
primacy, and prior decisions only provide guidelines, rather than
immutable precedents.   These advocates tacitly advocate the Sa-
trean view that the source of  law lies in social dynamics rather
than in an abstract and autonomous  past,  and that it may occa-
sionally be necessary to use the law as a weapon in social change
to assure that the principle of justice is met.

This work reflects the perspective of living law,  and it is or-
ganized around the theme that  social,  political,  or economic
crises and the accompanying attempts  at resolution precede legal
changes by creating new legal  definitions and new administrative
mechanisms to address them.  It describes the socio-legal context
of prisoner litigation, and the corresponding legal changes which
have shaped even such a narrow phenomenon as prisoner litigation.
A historical approach  is crucial in order to  test the dominant
view that the contemporary definition  of rights and their exten-
sion to new categories of persons emerges from either "incorrect"
ideological thinking or judicial  miscarriages.   Historical de-
scriptions are thus  useful because they place  distance between
ourselves and the immediacy of the present,  thereby allowing us
to see familiar objects in a new light.   The history of prisoner
litigation,  for example,  is not so much the history of correc-
tions or offenders as  it is of the role of  the law and courts,
the increasing importance given to the judiciary in settling dis-
putes, legislation creating and defining new rights and extending
legal protections to new categories of legal subjects,  and above
all, changing interpretations of the Constitution.  Prisoner lit-
igation,  because of the emotional and ideologically-based nature
of its subject  matter,  is especially vulnerable  to judgments
clouded by fact and reason.   Tracing its historical roots should
demonstrate that prisoner litigation is one of many facets of our
system of jurisprudence that can be linked to a millennium of le-
gal and administrative changes.

The history of law is the  history of attempts by state authority
to resolve through legal means  those disputes for which alterna-
tives are not viable.   Struggles over who benefits or loses, who
possesses legal rights and who does not,  which laws shall be en-
acted and enforced,  and what role law shall play in maintaining
social and political order further  add to the conflictual nature
of law.   Law cannot be defined simply as enacted statutes,  but
includes as well existing policies and procedures of enforcement,
tacit social understandings about rights and obligations, and the
entire administrative edifice by which law is done.   It has its
genesis and consequences in such factors as centralization of ad-
ministration and the rise of the nation state, as well as in eco-
nomic, political, religious, and other social factors that create
new definitions of "rights" as well as new groups who enjoy them.
In short, the rise of law has occurred largely as a mechanism for
mediating existing power arrangements.   It is not simply by leg-
islation or judicial decisions that  law has grown,  but rather
through shifting social forces for which existing forms of admin-
istrative conflict resolution are no longer appropriate.  Briefly
tracing the development  of English law from  pre-Norman England
through the seventeenth century will help illustrate the roots of
our own system.   Identifying the more salient social factors out
of which our system emerged will serve to show how it,  too,  is
subject to many of the same  pressures that have shaped both the
form and content of legal substance and procedure.

PRE-NORMAN ENGLAND

English written law  dates at least to  the mid-seventh century.
Despite nearly 500 years of Romanization, which began in 54 b.c.,
Roman jurisprudence did not survive  into sixth century England.

Through the Church, however,  the tradition of Roman law did not
disappear completely,  despite English social disintegration and
reorganization following the Empire's collapse.   By 407, the Ro-
mans were no longer a force in England,  and the church in Europe
was demanding independence, even dominance, over the state.   In
410,  Honorious instructed British towns to provide for their own
defense, and when Constantine III was defeated and killed in 412,
Rome was too weak to regain the lost British provinces,  and they
began to form their own distinctive culture (Collingwood,  1949:
47).   The two centuries prior to  the beginning of the seventh
century were years of Saxon colonization in east-central England,
and Saxon cultural influences included language, political organ-
ization, and a rich oral tradition.   Although some European rul-
ers (notably Theodosius II and Euric)  had issued statute books,
in England this did not occur.

Following the Saxon invasion,  English law evolved from the Teu-
tonic custom into which Roman tradition had been slowly filtering
through the Dark Ages,  and feudal  law still bore traces of its
double origin in  the system of the Teutonic  "comitatus" and of
the Roman "beneficium." Nonetheless,  although much of the essen-
tial legal structure was Saxon,   the subsequent development was
purely English.   Canon law had been developed out of customs and
precedents which had served to  regulate the first Christian com-
munities and which had been largely  formed from the civil law of
Rome.   Disparate local customs were preserved by the jealousies
that prevailed between one village  or manor and another because
of both the strong sense of local life and jurisdiction,  and the
strict adherence to long-standing traditions (Green, 1968:  113).
The Anglo-Saxon law that emerged  has been called "an especially
pure type of Germanic archaism" (Pollack and Maitland, 1968: 44),
influenced especially by  such concepts and institutions  as the
witan (king's council),  wer (designated fees  to be paid to the
victim for offense), and wite (penalty or fine)  are Germanic in
origin.   The gemot, a court or assembly empowered to hear cases,
was a general term used for the king's witan as well as for local
bodies.  There was no truly central administration other than the
church,  and the Saxon king's role remained that of dispenser of
court privilege rather than legal  administrator.   In a second
wave of colonization,  the Danes had established settlements and
assimilated in about three-quarters of the  country by the end of
the ninth century, and these three distinct cultures, Danish, Sa-
xon and Briton,  combined to create a form of social organization
and legal relations peculiar to England.

As on the continent, at the close of the first millennium,  Eng-
land was a feudal[3] which here refers to

     . . .a series of tiny economic nodules whose population
     and productivity were slowly increasing,  and in which
     the legal mechanisms ensured that  the bulk of the sur-
     plus went to  the landlords who had  noble status and
     control of the juridical machinery (Wallerstein,  1976:
     17, [italics added]).

The form and content of  judicial procedures were based primarily
on land tenure and the need to  define the subject status of bar-
ons and knights in relation to the sovereign.  The development of
reasonably explicit rules evolved  into custom-bound definitions
of obligation, inheritance and lineage, rights,  and other tasks
and responsibilities, and these formed the bulk of civil law.
There was emerging in Anglo-Saxon law a clear distinction between
public and private offense,  although  there was no perceptible
difference of authorities  or procedures in civil  and criminal
matters before the Normans; graver public offenses, however, were
reserved for the King's courts (Pollack and Maitland, 1968:  38).
Customs varied dramatically between provinces,  shires,  and estates,
and the practice of law was, as a rule,  not the affair of
the king.  Prior to the eleventh century, criminal offenses, both
public and private,  were primarily a local matter,  and courts
were open-air meetings of freemen who  were bound to attend them,
and there were a number of private, ecclesiastical,  local,  and
sovereign  courts  in  existence to  hear  cases.    These
&*(1:-1).[4]&*(0:&*len.)  and personal testimony of participants,
and the final judgment was given by their acclamation.   For this
they received compensation in the form of fines and fees.   There
were no professional judges, lawyers, clerks or other administra-
tors, and no records were kept (Pollack, 1968: 89-90).

The only "learned men" were the clergy, and this further contrib-
uted to ecclesiastical power,  since there  were at this time no
separate ecclesiastical courts in  England.   The primary royal
body, which also heard some of the more serious offenses, was the
witenagemot[5],  composed of a body  of nobles assembled by the
king, and invested with limited decision-making duties.   The wi-
tangemot, however,  had little power,  and the king was bound to
the decisions primarily  to the extent of  his personal control
over it.   It would thus be a  mistake to see the origins of the
state as arising from this body, as it served primarily as a leg-
itimizing mechanism for the royal position, possessing modest ad-
ministrative tasks rather than existing as a coherent body of law
or policy makers.   As Oleson (1955:  109) suggests,  the witan
probably did not function as a  high court of justice,  and even
such sentences as  it levied were pronounced in  accord with the
monarch's wishes.   The king's witan, however, did provide a "su-
perior authority in reserve" for  those desiring a primitive form
of appeal.  When modern scholars suggest that the drafters of the
Magna Carta tended to romanticize the features of Edward's reign,
they mean, in part, that the principle of an effective and influ-
ential body of royal advisors is exaggerated by subsequent gener-
ations who tended to ignore the limitations of its practice.
In this period, law and Church were intertwined.   By Aethelred's
time (979-1016),  the bishops were at  least as powerful as the
king in political and judicial affairs, and the laws of Aethelred
have been described  as "mere sermons preached  to a disobedient
folk" (Maitland, 1968:  29).   Jurisdiction often overlapped or
conflicted, and tensions occurred over who possessed the right to
hear particular cases.   In serious offenses, courts often became
an arena for working out  broader territorial and other political
disputes at least as much as they were forums of justice.
In this period of English law,  the state was rarely involved in
bringing charges against an individual,   and thus there was no
need to limit its legal power,  since it had none.   Saxon kings
were elected from among the high nobles and were not yet the cen-
ter of justice,  which was dispensed  on the principle of blood
feud.  Private wrongs were considered a tort rather than criminal
offense,  and the existing law specified explicit compensation to
be paid to victims  or their families if a blood  feud was to be
avoided.   This was later mediated by intervention or negotiation
of the clan patriarch who became  the de facto magistrate to whom
jurisdiction of protection and justice fell (Sharpe, 1976:  2-4).
What we have come to know as "criminal procedures," those more or
less formal rules applied to  assure offenders minimal standards
of fairness when  called to justice,  emerged  with the King's
peace[6].   The "king's peace" concept was borrowed from the con-
tinent, and dated from Anglo-Saxon England, and refers to general
guidelines established by  the king for mediating  disputes as a
means of limiting blood feuds,  avoiding anarchy,  and generally
attempting to minimize rebellions created  by personal or tribal
conflict.

In civil law and in personal offenses, grievances were brought by
individuals against other individuals, and redress was contingent
upon its willingness  or ability of the aggrieved  party to com-
plain and pursue a grievance.   The king was, in practice,  more
the "ultimate temporal avenger of justice" than dispenser of jus-
tice,  and judgments in court  were dependent largely on correct
pleadings customarily based on oath[7]
On the eve of the Norman  invasion,  the Old English Kingdom has
been described as not much more than a

     .  .  .federation of tribal commonwealths for the
     purpose of mutual defence; the importance of co-operat-
     ing even for this purpose  had been seldom realised ex-
     cept in the last extremity of danger.  Provincial jeal-
     ousies and the feuds of  noble houses had often spoiled
     the fairest and most needful  plans for common action;
     and unity was preserved much more  by the force of sen-
     timent than  from a conviction of  expediency (Davis,
     1957: 4).

Kings still customarily distributed to other nobles the jurisdic-
tion to hold courts,  which meant that the judiciary remained in
private hands.
If King John was the  unwilling thirteenth century natural father
of the Magna Carta,  then surely Edward the Confessor (1042-1066)
should be considered  the willing foster father  in the eleventh
century.   The direct substantive antecedents of our own system,
that part of which derives from English jurisprudence,  arguably
took shape prior to the Magna Carta in the reign of Edward.   The
seeds of judicial review, legal protection,  and the supremacy of
law over  the power of the  sovereign were sown,  but  had not
sprouted, during this period.  The laws established by Edward the
Confessor were actually begun by his grandfather, King Edgar, and
served,  as judged by the standards of the time,  as a model for
the definition and distribution of justice.   As Sir Matthew Hale
(1971:  56) has argued, they were the standing laws of the land,
and were held in  the same esteem as the Magna  Carta became for
later generations of British subjects.

To summarize, prior to the Norman conquest,  the legal system was
primitive,  and governed  relations among equals in  status and
wealth.   The economic bases of the this system assumed the exis-
tence of sufficient land to  accommodate an increasing population
without lowering their standard of  living.   Lords treated vil-
leins as subordinates owing allegiance  and resources,  and both
lords and villeins treated serfs as a commodity, useful primarily
for their labor power and what it  could produce in the fields or
cottage industry.   Lords held the  legal power over those under
them, and manor disputes were rarely referred to the king.   Two
social features of this period promoted  a form of cohesion that
contributed to a relatively low crime rate, and thus there was no
dramatic need for  development or refinement of  criminal proce-
dures.   First was the well-balanced system of social dependence,
and second was a universalistic religious ideology that supported
the norms and forms of social control to which this system corre-
sponded.  This gave rise to two forms of law.  The first, between
lords and serfs, was regional, highly variable,  and dealt prima-
rily with criminal offenses; the second was between feudal lords,
and between lords and the sovereign, was civil in nature.   As a
consequence,  we must recognize the explicit distinction between
civil and criminal procedures and  who benefited from the growth
of law during this period.   At the risk of some oversimplifica-
tion,  we might view criminal law as developing over the next few
centuries ancillary to civil law.

At the end of Edward's reign,  England remained primitive even by
European standards of the day.   There was little foreign trade,
little internal traffic,  and a  lack of large-scale industry on
which commercial interests could develop (Pollack,  1979:  88).
The laws of the land primarily  served to establish the security
of the king and the feudal  structure of land tenure,  and such
rights as were  protected were limited to  the nobility.   The
rights of the  rest of the population were bound  in custom and
guaranteed only so far as manor  lords were willing to recognize
them or insofar as commoners could coerce,  through persuasion or
threat of violence, adherence.

THE NORMAN INVASION, 1066

While it may  be unfair to describe the Norman  conquest as "the
outcome of a struggle, short and spasmodic in its character,  be-
tween a handful  of adventurers and a decadent  nation laying on
the outer fringe of European politics" (Davis, 1957:  1),  there
was nonetheless no dramatic break in continuity or custom despite
administrative changes.    This is largely because  the French
Prince William came not as a  conquistador,  but as a legitimate
rival claimant to the crown;  his victories, therefore, were not
so much the conquest  of a kingdom by a foreigner  as a victory
over other pretenders, primarily Edgar Aetheling,  favored by the
nobility, and Harold,  an English rival,  who eventually relin-
quished his claim to William following  his defeat at the Battle
of Hastings in 1066[8].

When William the Conquerer (1066-87)  finally established Norman
domination in England,  he found a decentralized system in which
justice was still dispensed locally at the discretion of individ-
ual noblemen.  William, like subsequent Norman kings, enacted few
laws,  and despite importing some Norman customs,  he brought no
significant body of law with him[9].  There were no written codes
and Norman law did not exist in a transplantable shape.   Indeed,
one advantage English law had over  that of the Normans was that
at least some English law was written.   Further, Pollack (1979)
and Maitland (1968: 74) have suggested that the procedures of the
two cultures were not dissimilar.    The age of superstition and
appeal to divine  intervention had passed,  and  both cultures
shared the oath system.   Both  cultures retained strong Church
ties,  and in both systems the  schisms between Church and state
created occasional conflict.   In fact,  one of William's first
acts was to define the relationship  of his new kingdom to Rome.
He opted for the Frankish  system and retained strong,  although
often acrimonious,  bonds.   The Norman administration left un-
touched the essential feudal agricultural economy, and encouraged
the development of inchoate rights while  taking away some of the
exceptional character of those already established (Davis,  1957:
38).  It is this body of law, in fact, which the barons sought to
revive 150 years later at Runnymede.

There were, however, some consequences of the Norman invasion for
the development of English law.   In the Norman system,  justice
flowed from the king, and to implement this,  William introduced
the King's Council,  which eventually replaced the former local-
ized court system (Duker, 1980:  14).   The Normans also brought
the intellectual,  administrative and  cultural traditions that
were to influence English law and its administration for the next
several centuries.   At this time,   the king's legislation was
closely connected both to the  political and doctrinal interests
of Papal authority; William weakened ecclesiastical judicial pow-
er by  demanding recognition of  the King's authority  over the
Church's,  and he confirmed as part  of the concessions for his
ascension the laws of William  the Confessor;  these laws became
known as the Laws of King William (Hale, 1971: 69).

We can see  in William's reign several  characteristics of state
centralization as it shifted to the authority of the king and his
courts.   First, judicial authority was no longer farmed out, but
became an increasing responsibility of the crown.   Second,  the
king began to establish not only formal statutes, but also infor-
mal strategies and procedures for  dispute resolution that would
shape judicial procedure and especially jurisdiction.   Finally,
the judiciary was beginning to develop  as a distinct area of ad-
ministration through the establishment of special courts, specif-
ic administrators reflecting a changing  division of judicial la-
bor,  expansion  of the  concept of  the king's  peace,  and
attempts--although not completely successful--to promote regional
uniformity.

LAW AND SOCIETY AFTER WILLIAM THE CONQUERER

William's successors were able to maintain and extend the hegemo-
ny of an increasingly central system.   When William II (William
Rufus, 1087-1100) succeeded his father, the rights of the common-
ers, never numerous, were in decline.  Prior to the Normans, vil-
leins (serfs) had under Old English common law modest protections
against legal abuses  by the lord of the  manor.   Among these
rights included intervention of shire courts to protect commoners
from eviction or  the arbitrary increase of  traditional feudal
services.   But by the end of the eleventh century, the "new jur-
isprudence" of the  Normans recognized no limit  to the demands
which a lord might make upon the  time and labor of the villeins,
and lords further assumed possession of all the villein held.
Although judicial fiefdoms were no  longer given to the nobility,
lords retained considerable power,  even though limited to their
domains.  In fact, the traditional manor courts, which had exist-
ed prior to the Normans,  seem to have increased the power of the
manor lord while  decreasing the rights of  the commoner.   The
lords' responsibility for  order among his tenants  invested him
with a quasi-magisterial authority,   a responsibility which did
not diminish under the Norman  kings.   

What had previously been
granted as a privilege had assumed the status of a right.   Wil-
liam II did not resolve,  nor  did he create possible means for
ameliorating, the tensions that existed between or within region-
al and baronial power and the king.  As a consequence, the struc-
tural tensions continued  to mount as increasing  pressure from
those competing for power challenged the existing arrangements on
which political power was based.  He did, however, contribute one
important but short-lived modification  in criminal proceedings.
He introduced the murder fine, or murdrum,  which was intended to
protect the lives  of Normans settling in England  who were fre-
quently attacked by natives (Poole,  1964:   393).   The theory
guiding this fine assumed that,  unless proven otherwise,  if a
murder victim was a Norman, a fine was levied by the king against
the hundred rather than the offender.   This policy reveals, al-
beit with some qualification,  the idea of public,  rather than
private,  responsibility of and prosecution for what we now call
"street crime." The intent was  to pressure localities to assume
responsibility both for protecting the local population,  and for
indicting and punishing offenders.   This practice is similar to
tribal societies in which the group as a whole reacts to preserve
order.  English society was changing, however, and William's pol-
icy did not long-survive.  William also abolished capital punish-
ment, preferring instead mutilation,  but this was reversed under
Henry I.

Legal change occurs when  social formations generate structurally
insolvable problems.   Such problems  become "fundamental" when
"individuals or groups repeatedly confront on another with claims
and intentions that are, in the long run,  incompatible" (Haber-
mas, 1975: 27).  We call this a structural contradiction.   There
existed such a contradiction  between the emerging centralization
of royal control  on one hand and the increased  power of manor
lords over local affairs on the other.  Although this system tem-
porarily strengthened and stabilized the  structure of the crown
and judicial powers, it also made it more brittle.   The increas-
ing complexity of  society and law made it  impossible to effec-
tively deal with new problems arising on the local level, and the
existing system was not able to  adequately deal with problems of
order,  let alone new definitions of problems that were emerging.
Scholars agree that William II's reign  was one of unstable con-
tradictory equilibrium and despotism,  ruled by a functional il-
literate with few  administrative skills and even  fewer fiscal,
diplomatic,  or judicial interests[10].   His contributions were
few, although he did preserve the administrative structure of his
father,  and the superstructure of English society remained in a
holding pattern at the end of the eleventh century.

It has been said that the twelfth  century is the "most legal" of
all centuries in the Middle Ages,  because of the revival of the
influence of continental law and  the "rediscovery" of the writ-
ings of Aristotle, Justinian,  and other classics.   It does not
follow, however,  that this legality created a law-abiding socie-
ty.  The problem of pervasive lawlessness, which existed into the
sixteenth century, occurred, in part,  because the feudal system
required able-bodied males to possess  weapons and be reasonably
trained in their use.   The continual military adventures of the
Middle Ages also contributed to a mood of violence,  and the re-
sult was  similar to a  problem faced by  contemporary society,
namely, the arming not only of those necessary to preserve social
order, but of those with more predatory interests as well.   This
facilitated brigandry,  violent quarrels,  and related offenses,
and in general contributed to disruption  of law and order.   On
the other hand,  if there was a shortage of justice in the waning
years of the eleventh century, there was no dearth of courts:

     There were the courts of the vill and the manor,  hun-
     dred courts and shire courts, borough courts,  honorial
     courts and the ecclesiastical courts of archbishops and
     bishops, and the newer courts of archdeacons, and,  of
     course, there was the court of the lord king.   In gen-
     eral terms it is fairly  easy to distinguish the compe-
     tence of each.   The humble court of the vill enforced
     the village by-laws.   The manor  court was the land-
     lord's private estate court,  hearing cases which arose
     out of the unfree tenures of his peasantry.   The hun-
     dred court dealt with the petty  crimes of lowly men in
     the neighborhood of a few vills.   The shire court, in
     its judicial aspects,  was largely concerned with more
     serious crimes:  felonies, accusations against freemen,
     tort and pleas of debts.   The borough court performed
     similar functions to the shire  court within the bounds
     of the township and according to the terms of its char-
     ter of incorporation.   Pleas of land, however, and all
     that arose out of  landholding,  such as inheritance,
     down, and a vassal's obligations to his lord,  were the
     peculiar province  of the honorial court,   the court
     which a lord summoned for the free tenants of his fief.
     The ecclesiastical courts,  in the words of an edict of
     William I,  were the proper tribunals for "causes which
     concern the cure of souls"--a sweeping phrase,  for by
     the notions  of the time  it covered  matrimonial and
     testamentary causes, promises made on oath, besides the
     discipline of  the clergy and correction  of sinners.
     The king's court--a court which  met whenever and wher-
     ever the king chose to convene it--was the greatest ho-
     norial court in the land, for it was there that the te-
     nants-in-chief brought their pleas; but it was also the
     supreme court for  the enforcement of all  the king's
     rights and the final court of appeal from lesser juris-
     dictions (Warren, 1973: 317-18).

When Henry I (1100-1135)  replaced his brother,  he inherited a
chaotic kingdom fraught with baronial opposition,  and he lacked
an effective administrative means other  than crude force to re-
duce conflict.  Following his brother's policies, he attempted to
return Normandy to his control, but unlike his brother,  who had
alienated a large segment of the nobility with demands to finance
his military projects,  Henry restructured his administration to
facilitate revenue collection and policy enforcement.   He reorg-

between feudal and later councils[11].   Henry also restored the
free election of bishops and abbots, and most important,  explic-
itly reaffirmed the laws of his father, and by extension,  Edward
the Confessor.   English law at this time continued to vary from
region to region, and perhaps the most notable of Henry's contri-
bution to English law, as well as to the centralization and homo-
geneity of the court system,  was the establishment of one system
of law limited largely to more  serious felonies and royal edicts
for all regions.  The monarchy was strengthened at the expense of
feudal power,  especially by the  introduction within the King's
Council of a class of administrators  dependent upon the king and
by the organization  of the Exchequer whose  travelling officers
heard judicial  pleas in the  course of their  financial duties
(Perry and Cooper, 1959).

Henry's law has  been described as a fusion of  Old English law,
feudal custom borrowed from the  Norman courts,  and principles
from civil law (Davis, 1957:  136).   But he was more pragmatic,
and although his laws tolerated  some traditional feudal remnants
(e.g., wergeld, ordeal), the procedures of the Old English system
were gradually replaced by enlightened procedures, but these were
often accompanied by more drastic punishment.   It has been said
that, like Scott's fabled Robin Hood, Henry, despite his extrava-
gance, robbed from the rich and gave to the poor (Harvey,  1963:
103).   Whether true or not, Henry's fiscal policies were opposed
by the nobles,  who preferred to pay the king little and extract
as much as they could from  the peasants (Harvey,  1963:  103).
While the rest of Europe was fighting the Mongols,  Henry was at-
tempting to placate his barons,  regain French lands,  and unify
his administration.   It is upon this legacy that the Plantagenet
kings built the legal structure that  has also provided the roots
of our own.

THE EARLY PLANTAGENETS

Despite the  advances of Henry  I,  it  was left to  Henry II
(1154-1198),  following the inept  and inconsequential reign of
Stephen (1135-1154),  to firmly establish a consistently central-
ized court system.  If the Magna Carta possesses symbolic signif-
icance as the legal foundation of modern liberty, then the admin-
istrative  reforms of  Henry II  must count  as the  symbolic
beginnings of the  judicial and political system  on which such
liberties could be based.  It especially provided fruitful ground
for a specifically English form of law to blossom,  and softened
the ground for the establishment of  the Magna Carta several dec-
ades later.

Stephen had left the kingdom in a state of virtual anarchy,  and
many of the legal gains were threatened;  he had also discouraged
the study of common law.   One of Henry's first tasks was to re-
establish the judiciary as a unified,  rational,  and above all,
tractable force by which to  preside over his subjects.   Almost
immediately he began to

     . .  .meet the vast mass of arrears, the questions
     of jurisdiction and of disputed property, which had ar-
     isen even as far back as the time of Henry I,  and had
     gone unsettled through the whole reign of Stephen,  to
     the ruin and havoc of the land in question.   He exam-
     ined every charter that came before him,  and,  if any
     was imperfect, he was ready to draw one up with his own
     hand;  he watched every difficult point of law,  noted
     every technical detail,  and laid down his own position
     with brief decision.  In the uncertain and transitional
     state of the law the  king's personal interference knew
     scarcely any limits,  and Henry  used his power freely
     (Green, 1968: 121).

The second Henry's contributions to  jurisprudence of the period
were three-fold.  The first lay in his judicial reforms.  He con-
solidated the court system,  reformed  the municipal laws of the
kingdom,  and established a more  orderly form of administration
and procedure than had existed before.  He created itinerant com-
missioners who travelled the realm and heard pleas, and he limit-
ed the  barons to settling  disputes arising only  within their
boundaries.  Although the practice of sending royal justices into
shires had existed under the Norman kings, the practice fell into
disuse under the anarchic reign of Stephen. Henry not only re-es-
tablished the practice; he refined and expanded it as a systemat-
ic form of judicial procedure.   Further,  although the poorest
freeholder was protected by the king's court,  the poorer classes
were generally not  freeholders and still subject  to the manor
lord (Holdsworth, 1956:  29).   Thus, Henry's modifications were
implemented primarily in the spirit of maintaining central polit-
ical control rather than expanding individual liberties.   Henry
began the long process of controlling  both the power and juris-
diction of his clergy, although this task was not to be completed
until Henry VIII  and the Reformation.   Under  him the Church
claimed jurisdiction of all disputes involving church property or
religious matters.   Such disputes could  be,  and often were,
broadly defined to allow  ecclesiastical jurisdiction over cases
that were properly beyond its  domain[12].   During this period,
the justices were educated and  drawn primarily from the clergy.
The Church's sophistication in law reflected the "rediscovery" of
Roman law, which, in the twelfth century,  spread rapidly.   Al-
though authors write as if Roman law  was "lost," it had in fact
survived in portions of southern Italy, where it was practiced in
what Maitland (1913:  11) has described as a "barbarized and vul-
garized form." This sophistication also derived from the underly-
ing tradition of training in logic of clerics.

Henry's second, and perhaps most significant contribution, lay in
his administrative leadership.   His administrative acts included
separating the Curia Regis into  administrative and judicial bod-
ies and extending the system of itinerant justices.   Under this
new system, the Curia Regis became the recognized court of appeal
for the entire kingdom,  and the  work expanded so rapidly that
both the personnel and administrative apparatus increased dramat-
ically[13].   Under Henry, the Exchequer and the Curia Regis had
control of all  financial and judicial business  of the kingdom.
In addition, despite Henry's attempts to regain French lands, his
fiscal administration was relatively responsible,  giving nobles
little cause for revolt.  He established relative peace among the
bickering nobles and was reasonably successful in limiting eccle-
siastical power and external Papal control.   Henry also reorgan-
ized a standing army and thus  decreased (but did not eliminate)
his military dependence on the  barons,  established an orderly
method of taxation,  and for the  first time defined the king's
rights in the forests[14].

One continuing problem was the sheriffs, who maintained consider-
able independence from the Crown.   The position of sheriff, al-
though not as  fully developed as it would  become under Edward
III,  was even at this time  the primary Crown representative in
local government.  Sheriffs emerged shortly after the Norman con-
quest and combined  the Anglo-Saxon sheriff with  the Norman vi-
comte, responsible for fiscal, judicial, administrative and mili-
tary organization of the shire (Poole, 1964:  387).   They were
originally powerful local barons with  a vested interest in local
affairs, and although the position was normally unpaid, consider-
able revenues were to be obtained through both legitimate and il-
legitimate performance of duties.  Henry began using professional
administrators rather than influential magnates  as his agents in
local government,  leading to  near-total reorganization of this
position.  This led to his Inquest of Sheriffs, which resulted in
dismissal of most incumbents.   Designed as a fiscal reform,  it
further centralized judicial  power in the hands  of the Crown.
Henry expanded the duties of the sheriffs, which included collec-
tion of royal revenues and  service and conducting related fiscal
administration.   He also transformed their purely judicial char-
acter,  and made them responsible for handling writs,  summoning
juries, and guarding prisoners (Barlow, 1972: 311).

Other legal reforms included drafting new and elaborate rules for
royal justices who sat on the Curia Regis[15].  Henry also creat-
ed new legal remedies for public  and private disputes,  and ex-
panded the power of his own courts,  which,  even when rocked by
power struggles of later generations, continued to develop.   He
is also credited, although perhaps with some exaggeration,  with
establishing the jury system for settling civil disputes.   Trial
by juries had been used in Athens nearly two millenniums earlier,
but the modern form is usually attributed to Henry II.   As Terry
and Hartigan (1984) have observed,  there were important differ-
ences between the two, making the Athenian system a distant rela-
tive at best rather than a  close cousin[16].   At the start of
Henry's reign,   offenders could be  brought to trial  in two
ways[17].   The first was on appeal, which had a different conno-
tation than we know today.   In the twelfth century,  appeal re-
ferred to the process by which  a complainant brought the charge
to the manor lord or other appropriate local official,  and then
had to prove the accusation  through combat.   Evidence suggests
that this crude form of trial was  not often brought to its ulti-
mate brutal conclusion,  and it remained an ineffective method of
resolving disputes.

The second method of bringing a  criminal to justice was through
public indictment,  which was at this time becoming increasingly
common.   The local community, usually through the hundred,  as-
sumed responsibility for identifying a crime and,  if necessary,
prosecuting it.  The jury was the body that sought out crime, and
it proceeded by  customs in existence prior to  the Normans but
never formally administered until Henry.  The jury was essential-
ly an information-gathering body,  although  it did possess some
sentencing power.   Because the method both of ordeal and combat
were discredited, ineffective, or dying out, the jury increasing-
ly became significant as the preferred means of processing crimi-
nal offenses,  and  by the early thirteenth  century offenders
could, for a small sum, have their cases heard by a jury.

Changes in law did not occur  so much through formal enactments,
but through informal verbal instructions given by the king to his
ministers or judges,  or through changing discretion employed by
inferior courts.  Henry discovered the difficulties that could be
encountered when attempting to  implement statutory regulation of
those practices that were based on customs or norms,  especially
when challenging the power of the clergy.   The church's preroga-
tive was perceived  as an encroachment by  ecclesiastical courts
upon civil jurisdiction,  and Henry was alarmed by complaints of
scandal and abuses by ecclesiastical tribunals.   The Church re-
tained courts  over not only  the entire clerical  order,  but
claimed the right  as well to enforce  all "matters spiritual,"
which included cases of oaths,   promises,  anything to which a
man's faith was pledged, to decide the property of intestates, to
pronounce in every case of inheritance  whether the heir was le-
gitimate,  and to declare law as  to wills and marriages (Green,
1968:  127).

In a system still based on land  tenure and power by birth right,
this provided clergy with considerable power.  To combat the pow-
er of the clergy, Henry appointed Thomas Becket as archbishop in-
tending to create a church more  amenable to his will.   He also
enacted several Assizes[18], the most famous of which is probably
the Assize of Clarendon[19].

Henry's final contribution,  which may be due in part to histori-
cal circumstance, but also certainly due to his judicial reorgan-
ization, lay in the creation of common law.   Although judges had
been guided by precedent and custom prior to Henry, it was large-
ly through his reorganization of the judicial process that common
law became relatively systematic and recognized as binding.   His
judges began keeping rolls of their decisions,  and lawyers stud-
ied these cases.   Judicial precedents were established as formal
guides for future decisions,  and procedures were established for
common pleas.  The rule of primogeniture (inheritance by the eld-
est male son), as Barlow (1972:  318) has observed, became fixed
by this time,  thus preventing the  creation of a caste nobility
and pushing the younger sons into the professions, commerce,  or
industry.

By the end of the Henry's  reign,  the transformation of English
law was well underway,  shifting  from local to central control.
Manor courts rarely began, tried, or concluded actions concerning
a freehold. The court system had become more specialized and sys-
tematic, and the doctrine of common law and stare decisis now, in

principle at least,  governed procedures.   Public prosecutions
were becoming more frequent, and the concept of appeal was firmly
established at this time, although its meaning was much different
than it was to later become[20].
Despite reforms,  the law at the time  of Henry II was no longer
adequate for a society in which  the former feudal system was be-
ginning to feel the strains of a changing world economic order in
which expanding bureaucratic administration,  increasingly expen-
sive means of waging war, and a slowly,  but steadily increasing
need for free labor began to shift economic and class power.  Nor
were the changes  in the theory and administration  of civil law
matched in criminal law.   Although the aspects of general crimi-
nal procedure are murky during this period (Warren, 1973:  320),
it seems that a number of feudal customs remained.   Oath and or-
deal remained the  primary methods of proof[21]  in temporal af-
fairs,  and trial  by combat was seldom used  in Henry's time.
There was still little examination of evidence,  and there was no
questioning of witnesses.   Nonetheless, the rule of law and ad-
herence to established universalistic  procedures had taken root
and began to replace particularistic forms of judgment,  and this
would soon affect criminal procedures as well.

On balance, Henry's reforms,  while perhaps not dramatic by con-
temporary measure,  significantly undermined the existing feudal
arrangements which  the baronial hierarchy had  been accustomed.
The outcome of his labor created the foundation of a strong, cen-
tralized state.   Although many of the consequences would not be
evident for several centuries,  the law,  perhaps more than any
other single institution,   was being shaped to  mediate social
change.   The structure of an  embryonic judicial apparatus was
emerging,  and it would be used by future generations as a weapon
to promote, secure,  create,  or regain interests that were per-
ceived to be threatened.

Henry's fiscal and judicial concerns were  not shared by the two
sons who succeeded him,  and this ultimately led to conflict with
the nobles and the signing of the Magna Carta.   By the reign of
Richard (1189-99), proprietary ideas of landholding and ownership
were changing,  as were the  procedures which governed such dis-
putes.   The king was acquiring the power to decide such differ-
ences, and this transferred some legal jurisdiction from regional
custom and Church prerogative into the  hands of the Crown (Mil-
som, 1972).   But this transfer was not painless, and it was left
to his son John, rather than Richard, to resolve the ensuing con-
flicts between church and especially baronial opposition.

Richard's interests lay more in military adventure than in admin-
istration,  and neither politics nor fiscal management distracted
him from waging expensive campaigns abroad.  His exploits, costly
and unpopular,  stretched both the ability and willingness of the
knights to pay.  After the Christian defeat by Saladin (Battle of
Hatton, 1187), Richard's goal was to reconquer Jerusalem.   This
allowed his brother John (1199-1216)  the opportunity to build a
competing power base in his absence.   Following Richard's death
in a petty quarrel in France, John was able to resume his goal of
reconquering lost territory.   John had lost his Norman kingdoms,
and in attempting  to retrieve them he burdened  his nobles with
fiscal obligations which they refused to bear.  The friction this
caused resulted in  the signing of the Magna  Carta at Runnymede
(1215).

                    3. THE MAGNA CARTA, 1215

Although the view that our own  legal system derives largely from
the Magna Carta is somewhat mythical, the Magna Carta nonetheless
provides a convenient symbolic event.    Many scholars trace our
legal roots back to the Magna Carta. Although the principles con-
tained in the document were not new,  they were,  for the first
time, written down,  and symbolized a dramatic transformation in
the relationship between law, the state, and society.   Like many
legal changes,  the Magna Carta was the consequence of political
and economic crises.

Although some (e.g., Painter, 1964:  93) have called the reign of
John one of creative experiments,  this glosses over his abuses,
misjudgments, and misadministration,  primarily in levying taxes
for unpopular military conflicts and in  abusing his power of ar-
rest to encourage revenue collection.   These took the pattern of
increasing customary feudal obligations  while decreasing estab-
lished feudal rights and protections (Perry and Cooper, 1959: 2).
In 1213,  when John attempted to revive his war with the King of
France, the barons refused to participate,  and John attempted to
coerce their cooperation.   The nobility were now well organized,
and in alliance with the London merchants,  renounced their alle-
giance to John and forced him to meet their demands.   Pope Inno-
cent III,  technically Lord of all England,  declared the Magna
Carta void,  and he reminded the  rebelling barons the Pope re-
mained their liege[22].  There is evidence that John himself nev-
er intended to honor the Charter (Perry and Cooper,  1959),  but
crisis was averted when both the Pope  and the king died within a
few months of each other in 1216.

The rebellious nobles, aided by those among them with administra-
tive or judicial experience, had spent at least two years prepar-
ing their document.   The text was influenced by the twelfth cen-
tury  juridical practices  of Henry  I and  Henry II,   and
romanticized the notion of the  principles of procedure under Ed-
ward the Confessor in the eleventh century.   Among the key chap-
ters were protections against arbitrary taxation,  the establish-
ment of basic  judicial procedures,  including trial  by jury,
protections against arbitrary punishment, and above all,  adher-
ence to the "Law of the  Land" (at that time meaning recognition
of Edward  the Confessor's laws  as embodied especially  in the
statutes of William I).  These basic protections not only consol-
idated existing  judicial protections,  but  established basic
rights[23] that provided the model  for subsequent generations of
English.

The Magna Carta in fact established no new law.  Instead it was a
demand for the return not so much of the specific laws enacted by
Edward, for his legislation was scant, but of the practice of ad-
hering to established law.   Through this mechanism of redressing
grievances,  the Magna Carta limited the monarchy and provided in
written form the customs which  provided the framework for subse-
quent legislative  and judicial practice for  future centuries.
The rights and obligations of the  King and nobles and the rela-
tionship between the two was to be specified,  not based on vague
promises and coercive force as  John had done.   The principles
contained in the document limited the  king's power to arrest no-
bles and impose taxes or other obligations without their consent.
It defined rights of inheritance,  and similar relations between
the power of the crown and  interests of the nobility.   In this
way,  a conflict essentially class-based in nature developed into
a national issue.

The Magna Carta provided not only  a system of judicial adminis-
tration,  but provided as well  the legitimacy which the barons
needed in their quest for power  and which the king,  albeit un-
willing, could use as a legitimating tool to maintain monarchical
control.  The significance of the Magna Carta, then, lay not sim-
ply in the rights it embodied.   If this were its primary contri-
bution, it would be modest indeed,  for many of the rights either
had been claimed before or  were explicitly protected by previous
statutes.  Its primary significance was political.  For the first
time, the powers of the sovereign were definitively limited and a
set of legal principles were given  primacy over the authority of
an individual sovereign.   Ironically, while this provided a use-
ful mechanism for containing royal power,  it also had the conse-
quence of expanding the power of the state by creating the admin-
istrative machinery and requisite personnel to implement it.   It
is this legacy that we forget today,   and a legacy which led to
further opposition from later generations  of English against the
power of a centralized authority.

Upon John's death, his young son Henry III (1216-72),  guided by
his advisors,  reissued the Magna Carta three times with the con-
sent of Pope Innocent's successor Honorious III,  each time reaf-
firming previous rights and on occasion extending them.  By 1254,
when the knights were summoned to consider new taxes, the Parlia-
mentum (or Parliament)  was created,  and by 1265 the cities and
boroughs secured  their right  to be  represented in  this new
body[24].   Although the significance of  this embryonic form of
the future Parliament should not be overstated, it does, at least
symbolically,  mark a general transition  in which at least some
fiscal and other inter-class conflicts  were moved from the mili-
tary into the political sphere,  and an explicit,  but primitive
and episodic,  central state mechanism was established to mediate
them.   Assuming some judicial functions allowed this early Par-
liament to hear grievances against peers or between peers and the
crown.   The Parliament also took a more aggressive role in shap-
ing legislation and participating in administration.   Because of
the increased representation,  monitoring,  and decision making
powers, even if sporadic and often informal in nature, this peri-
od of Parliament  symbolizes the advances the  feudal system was
making in its growth toward the modern state.   Confronting dis-
putes in a  sanctioned political arena reflected a  new form of
conflict resolution in which law became  a type of social and ad-
ministrative cement.   By legislatively defining and reaffirming
social practices and establishing procedures  by which to imple-
ment them,  the legal machinery was used to steer English society
through its transition  from one still largely  based on organic
solidarity into the modern era.

By the mid-thirteenth century,  the jury system was commonly used
and just as commonly abused.   Compurgation (the clearing of of-
fenders by oaths) continued in many jurisdictions,  and in London
the testimony of  a corpse was even admitted  into court (Poole,
1964:  73).   Bribery of, perjury by, and violence against jury
members  illicitly supplemented  licit litigation  procedures.
Criminal law had slowly begun to move out of the manor courts in-
to the jurisdiction of the state, and there had been considerable
proliferation of standardized writs available for initiating cas-
es in both the king's and county courts (Palmer, 1984: 19).   The
introduction of a second house in  Parliament created a de facto
estate system, and if we include the clergy, England at this time
was composed of three estates (aristocracy, clergy,  Parliament),
or formal power sharing bodies,  which symbolized,  although did
not cause, the end of the feudal system of administration.
Under Henry III, the unlawful arrest or detention, selling or de-
laying of justice, excessive taxation,  and Forced "loans" led to
baronial resistance and the signing  of the Confirmatio Cartarum
(1297).   

This had two principle effects on English liberty (see
figure 1).   First,  it established Parliament as the principle
representative of government,  and thus protected barons,  espe-
cially against taxation without consent.   Second, it reaffirmed
the idea of the existence of  a supreme,  inviolable Law of the
Land and provided the first precepts of judicial review.  In this
limited form of review, the High Court, as Gray (1871:  xxv) ex-
plains,  functioned in part to interpret legislation (but not de-
cisions)  in order to check "degenerative propensities" in those
laws that deviated from common law tradition or established stat-
utes of considerable magnitude (e.g.,  Magna Carta through Edward
I).   At the close of Henry III's reign, the King's Court was the
most powerful institution in the Kingdom,  and,  in addition to
itinerant justices,  it was also composed of highly trained offi-
cials who regularly travelled the country.

Although the court originally held financial,  administrative and
judicial duties, under Henry the judicial branch was consolidated
into a well-organized and smoothly functioning apparatus, further
centralizing law,  thus firmly establishing separate state courts
for criminal and civil proceedings.   Holdsworth (1956:  30) has
observed that by the end of Henry's reign,  the King's Bench and
Common Bench were distinct courts each with its own judges, offi-
cers, and records.   By the beginning of the fourteenth century,
the king's court had become the most important judicial body, and
was at this time composed of  three branches:  The Court of the
King's Bench,  the Court of Common Pleas,  and the Exchequer of
Pleas.  Palmer (1984: 21) has summarized these courts as follows:

     The Court of the King's Bench was the highest branch of
     the king's court.   Its  jurisdiction was particularly
     related to major (felonious)  and minor breaches of the
     king's peace  and to  the supervision  of the  other
     branches of the  king's court.   The Court  of Common
     Pleas was  by far the  busiest branch of  the king's
     court:  it handled a wide range of litigation conncern-
     ing property, obligations, and wrongs.   The Exchequer
     of Pleas,  that branch of the king's court particularly
     associated with the Exchequer, the accounting agency of
     the royal government,  handled  matters pertaining to
     debts owed  to the king  and those  involving charges
     against officials, such as the sheriffs,  who were ap-
     pointed in and accountable to the Exchequer.   In 1300
     the Chancery was still primarily the king's secretarial
     office and issued  the writs that originated  suits in
     the king's court;  it was not  yet the great Court of
     Chancery that it would [later] become.

The public courts at this  time were considered "public" because
they were courts  to which the individuals in  a given territory
could resort and were in some  way related to the central govern-
ment.   The county courts, also considered public courts,  were
presided over by the county  sheriff and constituted the primary
jurisdictional/governmental units of  medieval England.   There
were forty such county courts by 1300 (Palmer, 1984: 20).
The contributions of the thirteenth century to our own legal sys-
tem stem  from three important  characteristics of  the period.
First,  the period was marked by an expanding central government
under the king which provided the  power to initiate and enforce
law.  Second, in addition to the growth of state power, there be-
gan to emerge a professionalization of the administrative appara-
tus to carry out the day-to-day juridical tasks.   This included
the creation and  refinement of special courts  specifically de-
signed to process specific types of cases, new rules and resourc-
es funnelled into this apparatus to maintain and develop it,  new
forms of coercion,  which generally  relied on the legitimacy of
non-violent compliance,  and new forms of punishments for offend-
ers.   Finally, and perhaps most important, there began to emerge
a legal ideology in which a  solid foundation of systematic law a
partially-autonomous nature in which it  not only created legiti-
macy for royal edicts,  but itself took on legitimacy and placed
limits both on the power of the  sovereign and on other state of-
ficials as well.

POST-MAGNA CARTA: THE LATER PLANTAGENETS

Using the metaphor of seasons, Harvey (1963: 107) has argued that
Plantagenet England can be divided  into three distinct periods.
The spring was ushered in by Henry  II,  budded at the death of
Henry III and began its summer blossom  by the reign of Edward I
(1272-1307).   In the century between Edward and Richard II, ju-
ridical reform and administration advanced,   and the state took
more control over enacting and administering both civil and crim-
inal proceedings.  In the autumn of the Plantagenets, from rough-
ly 1399-1485,  legal advances  were not particularly significant
and rested  on the framework created  by the three  Edwards and
Richard II.

By the beginning of the fourteenth century and Edward I, the con-
cept of "Law  of the Land" became synonymous  with "due process"
and the Magna Carta was firmly  established as the model by which
to guide judicial procedures.  Edward I (1272-1307) continued the
fight begun by Henry II against  judicial abuses,  which had in-
creased under Richard and John.   Nonetheless, Edward had forgot-
ten the lessons of John's experience,   and repeated many of his
errors.   Pricked by the King's violation of established law, es-
pecially his propensity for increasing revenue, barons and clergy
united to re-establish their rights through law.

Edward realized that a powerful central state was required to as-
sure his position and contain his fractious opposition,  which by
now included not only the nobility  but a growing middle class of
free landholders and commercial interests.   Jenks (1968: 54) has
observed that English law had  been variously declared by kings,
landowners, common folk, judges, merchants and ecclesiastics, and
it was Edward's  strength that "he brought  these various groups
together to obtain law infinitely stronger, better, juster, above
all,  more comprehensive,  than the separate laws which preceded
it." It is this centralization  and containment rather than judi-
cial changes which characterize his contributions to legal devel-
opment.   He created a systematic  body of public law regulating
commerce, trades, and social life.   Edward also excluded lawyers
from sitting as county  representatives to Parliament,  arguing
they were unqualified to represent county interests.

For these reasons,  Edward was considered both a great legislator
and an adept administrator.   Perhaps more than of his predeces-
sors,  he attempted to settle and establish distributive justice
throughout his kingdom (Maitland,  1913:  19),  and he has been
called the "English Justinian" (Jenks, 1968:  139) largely on the
basis of his juridical administration.   His policies facilitated
the dissolution of patriarchalism  and feudalism and consolidated
the administration of  law.   Drawing from the  judge and legal
scholar Henry of Bratton (Bracton)  a few years earlier,  Edward
solidified English law into a coherent whole which would grow and
develop.

McKisack (1959: xvii) has described early fourteenth century Eng-
land as a prosperous land with an expanding population and flour-
ishing agriculture.   Nonetheless, such a picture belies the con-
tinuing lawlessness and abuses of  royal judicial power.   After
initial bickering over procedure, Edward II (1308-1327) was coro-
nated,  but agreed to take a  fourfold rather than the customary
threefold oath.   His promises to  maintain peace and do justice
corresponded to previous oaths, but the fourth required his prom-
ise to "maintain  the laws and customs allowed  by former kings"
which amounted to a general agreement to uphold previously estab-
lished English law and custom (McKisack, 1959: 5).   This was the
result of the noble's memories of previous abuses, and represent-
ed a further  step in the long road  toward further establishing
the sanctity and autonomy of law over the sovereign.

There was nothing revolutionary in  this concession,  since the
principle had been  in existence since King  John and especially
the legal theories of Bracton.  But  it did symbolize the slowly
growing importance placed on liberties,  new definitions of legal
rights and the subject status of those who enjoyed them.  Shortly
after Edward's coronation, the Ordinances (1311)  restricting the
king's free use  of power in performing his  duties and defining
and imposing obligations on his subjects (primarily the nobility)
were passed.  The Ordinances required regular sessions of Parlia-
ment and allowed the Ordainers the right to interpret and clarify
ambiguity in legal decisions based on the Magna Carta.   Although
many of the changes were implicit custom,  and although the Ordi-
nances were repealed a decade later,  they nonetheless signified
the growing power of law as a  weapon in political conflict and a
means of transforming the structure  and social relations between
ruler and ruled.    

Edward II expanded the state  as a steering
mechanism for stabilizing the economic  structure through the en-
actment of  strict wage and  price laws and  monitored markets,
trades, and professions.   Under Edward, there was also increased
representation of commoners in Parliament, lending both legitima-
cy and strength to central administration, and further politiciz-
ing both inter-  and intra-class conflict by  creating access to
state power and decision making  for non-aristocratic members of
society.   The essential judicial,  Parliamentary,  and council
structures were sharply defined,  and  modern historians tend to
see in his administrative reforms  the contours of an administra-
tive structure that has survived in altered form to the present.
Despite the significant contributions of  the first two Edwards,
the reign of Edward III (1327-1377)   is perhaps the best known.
This is in part because of  his contributions to judicial and po-
licing administration,  but also because of the longevity of his
reign.   It was during Edward III's reign that the Hundred Years
War began and sporadic plagues occurred (1348-49, 1361-62,  1369,
1375).  The war, a century-long series of skirmishes between Eng-
land and France, placed a drain on crown revenues and contributed
to the continuing rise of Parliament,  on which the king depended
for resources.  The Parliament of April-May 1341 secured a number
of concessions from the king.   These included protection of the
clergy against arbitrary arrest and encroachments on their juris-
diction,  peer protection against being  tried by other than the
king except in Parliament and before peers, and a general conces-
sion that breaches of the Great Charter be reported in Parliament
and redressed by the peers of  the land,  whatever the status of
the offender (McKisick, 1959:  173-74).   Parliament also became
more representative at this time, including lords,  clergy,  and
representatives from shires, cities,  and boroughs.   The plague
further contributed to the crises of the period.

The first plague had perhaps the most immediate impact,  since it
fell hardest on older and more prominent people (McKisick,  1959:
331).   Although the aristocracy seems to have been much less af-
fected by the  plague than commoners in the  next two outbursts,
they were not unaffected.   This increased the problems of deter-
mining land or  estate inheritance through the  high death rate
which on occasion eliminated all  natural heirs or left ambiguous
the rights of potential heirs.  It also disrupted commerce, trav-
el and production by decimating the labor force,  fostering local
isolation in those  communities not yet suffering  from disease,
and in general creating an environment of chaos.

Edward also  dramatically altered the  role of justices  of the
peace.  Prior to Edward, policing of criminal offenses was a com-
munity, not a state, endeavor, and juries, townships and villages
could be fined  if they either did not report  malefactors or if
they did not meet quotas (Green, 1968:  130).   Edward enacted a
statute that every shire was to  select "good and lawful men" to
keep the peace,  and a second  statue provided for three or four
notable citizens to have the power of arrest, receive indictment,
and hear and  judge various felonies according to  the "law and
customs of the realm." By 1388,   these groups were directed by
statute to meet four times a year,  and were now called "justices
of the peace." Also under Edward III,   the inns of the court of
London took on the character of a legal university,  and although
the language was French, the laws studied were explicitly English
(Tout, 1905: 426).

When Richard II (1377-1399) ascended the throne, he was confront-
ed with dramatic social transition created by the plague, and the
political apparatus created by his predecessors nearly collapsed.
Population growth increased dramatically, cottage industries were
increasing in economic importance,  and  the power of the landed
class was beginning to be  challenged by mercantilist interests,
which would create substantial problems in the next century.   A
significant phase in the development  of legal administration had
ended with Edward III, and an hiatus of sorts set in.  During his
short reign, Richard II was unable to consolidate his government.
He died leaving it a battle ground of vested interests.  Although
his successors  were able to  establish order and  a re-unified
kingdom,  never again  was the crown able to  influence law and
courts to the extent of the previous Plantagenets.

Under the three  Henries there was no  systematic development in
the administration  of law,   and the  reign of  Richard III
(1483-1485)  was too short to leave any lasting accomplishments.
The nature of the state, which in England had begun to emerge af-
ter the consolidation of political power under William I, and be-
come more firmly  established under the political  and juridical
consolidation of Henry II,   was continuing its transformation.
From a system  in which a sovereign claimed  direct control over
the subjects  and established a bureaucratic  administration to
consolidate power and control,  the bureaucracy now emerged as a
partially autonomous entity in which  its interests coincided and
acted in alliance with the sovereign.  As religious, social, eco-
nomic and demographic changes created new crises and required new
forms of resolution not always consistent with the ability of the
existing political system to  meet them,  existing institutions
changed,  former institutions passed out of existence,  and new
forms of administration and control  emerged to mediate the con-
flicting parties and their various interests.   By the end of the
Plantagenet period in the late 1400s,  there were disputes which
courts of common law hesitated  to hear,  according to Wilkinson
(1964: 266), for sound legal reasons[25].

The Inns of Court, and thus not surprisingly lawyers,  were drawn
from the aristocracy,  and this  influenced to some extent both
their judgments and  the political use to which they  put law in
alliance with other members of their class[26].  Along side these
structurally-induced changes, there still existed conflicts with-
in the various classes for dominance.  This effectively split po-
litical opposition and thus allowed the king to retain control of
the legal apparatus.   Wilkinson (1964: 198) has argued that law
at this time  "spoke with a divided  voice."  Fifteenth century
lawyers rejected the Roman law maxim  that "what pleased the king
had the force of law," but  recognized the crown prerogative and
power in judicial matters.

If there was strong feeling that judges must abide by the "Law of
the Land," there was also a counter-current as well that the king
was above the law and explicit  crown judgments (when not affect-
ing their own courts) were above their jurisdiction.  The old es-
tate system was breaking down,   feudal lords were losing power,
and the broadening of English  liberty now encompassed the middle
classes (Wilkinson, 1964:  204) as the rights of the aristocracy
were now  shared by a new  body of middle class  power seekers.
Throughout the Middle Ages,  judicial administration was part of
the stakes in  the perpetual battles over  royal administration.
The feudal aristocracy was in  decline,  the merchants and large
producers ascending,  and the struggle for political and economic
dominance both  between these groups  and between them  and the
state led to repeated clashes over  which law became both an in-
strument for opposition and a victors' spoil of conquest.
When Richard III (1483-1485),  the last of the Plantagent Kings,
assumed the throne, England was in a state of anarchy.   However,
the structure of law, was useless in maintaining social order and
preventing faction fights.  It nonetheless remained intact and in
uneasy tension with the king:

     Certainly the  judges had recognized  that Parliament
     made the law,  in accordance with which the king should
     reign, but the king himself could do no wrong which the
     judges could remedy,  and Parliament was still his high
     court.   The great officers of state, the judges,  the
     sheriffs,  and the mayors all exercised their authority
     in the name of the king, and although, during the trou-
     bles of the Roses,  irregularities  had crept into the
     system,  the system itself  was still intact (Mackie,
     1966: 12).

The end of the Plantagenets marked the  end of a social era,  as
England moved out of the medieval into the pre-industrial period,
taking a major step toward  modernization.   Although there re-
mained lingering traces of the old feudal order, growing national
and international  economic interdependence had made  the social
relations on which the self-contained  manor system was based in-
effective,  and they could not compete with the emerging capital
economy.   Trade, migration, science and technology, specialized
division of labor, and a mix of labor, capital and intensive pro-
duction made the owning or holding land insufficient for generat-
ing wealth and power.  Further, it was no longer as easy to mobi-
lize and provide for a private  army because of the changes that
technology had brought to warfare.   Fortifications, weapons and
training were too expensive for  most nobles,  thus centralizing
legitimate force under  the state.   England still  had a rural
economy,  but even in the late fifteenth century displaced agri-
cultural workers were moving into larger urban areas.  This dis-
placement was  in part responsible  for increased crime  on the
highways and in towns,  as the  population growth was,  in most
areas,  occurring more rapidly than  was the means to assimilate
newcomers.   The means of sustaining the population,  previously
done on farms or the manor,  was being supplanted by wage labor,
which meant that  those without jobs had little  way to subsist.
This was also a period not  only of domestic power shifts between
estates and new classes, but of international alignments as well.
To meet these problems, new laws, especially criminal laws,  were
passed,  designed primarily to protect commerce and property[27].
In short,  as English society became more modernized through new
forms of commerce,  industry and  technology,  new legal forms
emerged to promote and protect  these emerging social relations,
and this was the problem which taxed the Tudors.

             4. THE ENGLISH TRANSITION: 1485 TO 1700

The beginning of  the Tudor period,  beginning  with Henry VII,
marked the end of one era of English law and the beginning of an-
other.  Law, under the Tudors, became more rational, more bureau-
cratic,  and the concept of rights  began to be recognized as a
fundamental aspect of society,  and  extended to broader social
groups.  But the transformation in law did not occur automatical-
ly; it came about because of numerous social conflicts and events
that created new problems for which law was seen as a useful rem-
edy or weapon.

THE TUDOR PERIOD

The fifteenth century ended with the  War between the Red Rose of
Lancashire and the White Rose of York at the Battle of Bristol in
1485.   This "War of the Roses"  has been described as "the last
faction fight between  organized gangs of barons  for control of
the government" (Hill, 1969: 29).   While this may be overstated,
this dynastic quarrel was, as Fisher (1919: 2) states, sterile of
ideas and principles and prolific of sporadic anarchy.   When the
dust settled, Henry VII regained the Kingdom for a line of Welsh-
descendents kinds and queens with  his victory over Richard III,
transformed political alliances,  shifting  the balance of class
power.

While under the Tudors there were  no dramatic legal or juridical
changes comparable to the Magna Carta,  the Tudors' political im-
pact on law was profound.   Under both Henries,  but also under
their successors,  the Tudors enacted  a variety of statutes de-
signed to control the movement of displaced rural dwellers, regu-
late and protect skilled workers and artisans,  and secure smooth
production and distribution  of goods for the  growing merchant
class.   These statutes favored the gentry at the expense of the
aristocracy, and finally completed the erosion of the administra-
tive and juridical  machinery on which feudal  power was based.
The increased status of the House of Commons meant that the House
of Lords shared Parliamentary power,   which increased both the
rights and expectations of non-nobility.   Litigation, as a means
of resolving economic and political conflicts and property rights
(although not yet personal harm), increased dramatically.  Juries
and judges, however, were still not fully autonomous,  and could
be influenced, bribed,  coerced and terrorized,  either through
pressure brought  by the Crown or  by other powerful  landed or
aristocratic groups.

It was not until late in  the next century that relative indepen-
dence was secured.  Henry VII extended the mandate of justices of
the peace, and they were commanded, under penalty of fine or dis-
missal,  to take a more aggressive role in combating counterfeit-
ing, murder, robbery and other felonies.   The Court of Wards, a
new court created to exploit the  remaining fiscal aspect of feu-
dalism, transferred the administration of revenues from the Chan-
cery and Exchequer, thus expanding the royal prerogative for rev-
enue collection.    Nonetheless,  there appears to  be little
evidence that Henry's attempts to  curb lawlessness met with con-
siderable success,  and during this period even the Star Chamber
did not take any significant  initiative in prosecuting offenders
(Chrimes, 1972: 186).   During Henry VII's time, there is no evi-
dence that the Star Chamber heard felonies, and there is no known
instance of state initiation of litigation.  The bulk of its cas-
es were private suits alleging rioting,  and miscellaneous civil
suits and municipal and trade  disputes constituted a large pro-
portion of the remainder (Chrimes,  1972:  148).   The Council
Learned, on the other hand, served a different function,  and its
cases dealt with Crown prosecutions and Crown debts.

Despite his administration and  attempted reforms,  Henry VII's
primary interest lay in enforcing laws  in which the Crown had a
direct financial interest.   There were neither gains nor losses
in the power of Parliament, although the King was still dependent
upon it for revenue.  Henry's King's Council had further central-
ized the state's  legal powers by transforming its  powers as an
advisory council to a formal court  of law.   Henry VII did not
fundamentally change the judicial structure,  but he did smoothly
manage its administration.   He was  not considered an excessive
law maker, even though his laws have been described as possessing
exceptional merit.  But in the main, Henry's statutes were not of
major importance.

When Henry VIII (1509-1547)  assumed power,  the legal system of
England, like the society itself, was in a state of chaotic tran-
sition.  The judiciary, laws, and procedures, despite the reforms
of previous centuries,  were entering the modern era as a hodge-
podge of traditions, statutes, practices,  and often inconsistent
statutes.  New laws and procedures were enacted, others fell into
disuse,  and there was little effort to streamline or rationalize
the legal system  as there had been under the  second and third
Henries or the three Edwards.   Such factors as governmental rep-
resentation,  criminal and civil procedure,  inheritance rights,
Crown prerogative, land and property titles, commerce, navigation
and shifting social classes placed  additional strains on the ex-
isting system.  This was further complicated by a high crime rate
and a plethora of unsettled definitions of rights.  This added to
the burden of  the existing courts and taxed  their abilities to
arrive at consistent and appropriate  resolutions to the qualita-
tively  new and  quantitatively overwhelming  number of  suits
brought before the courts.  This realignment of power exacerbated
class tensions,  which were to erupt in the next century to chal-
lenge the monarchy, transferring power from the crown to a fairly
independent bureaucratic apparatus.

The "Tudor Revolution"  in law and government  was propelled by
rapid social transformations as the  country moved from feudalism
into a pre-industrial, international economic system, and law was
used as one  weapon by which the Tudor rulers  guided this tran-
sition.   The first tasks of  Henry VIII included conquering the
lawlessness of the  nation and curbing the power  of the Church.
In attempting to rationalize the Crown's legal procedures,  Henry
created a new  council and divided it into the  Council at Court
and the Council in the Star Chamber.   The former ultimately be-
came the Privy Council,  attending to matters of foreign and do-
mestic policy, and the latter became the hated administrative and
judicial branch that was disbanded  in the early seventeenth cen-
tury[28].

Yet, despite the emergence of a powerful merchant and nascent in-
dustrial class,  the mid 1500s were still dominated by great lan-
downers, although the peasant revolt of 1549,  the last major in-
surrection of  its kind,  challenged  their hegemony  both in
politics and law.   The Church remained powerful, but Henry soon
moved to reduce their political  and economic power by redistri-
buting Church land.   The most significant act of the period was
the Act of Supremacy (1534), and in the seven years in which Hen-
ry's Reformation Parliament met,  it severed the ties of England
to Rome and established royal supremacy over the church.  It also
dissolved the smaller monasteries,  initiated a redistribution of
national wealth and implemented a land settlement of church land.
It strengthened royal power,  and if the king benefited from this
centralization, so did his administrators.  Prior to the Reforma-
tion,  the sovereign  was dependent on the Pope  to control the
clergy who wielded  political power by means  of their position,
and economic power through the lands they owned and the consider-
able revenues these generated.   The Reformation, as Hill (1969:
35)  has observed,  not only subordinated the national church to
the king but it also subordinated parishes to squires.   The gen-
try replaced monasteries not only as  landowners but also as re-
cipients of tithes and as patrons of livings.

In the reign of Henry  VII,  Parliament increased in importance.
The monasteries were secularized,  thus limiting the power of the
clergy, and enclosure increased the amount of pasture land,  thus
contributing to the expansion of the English textile trade.   The
economic decentralization of feudalism was, by the sixteenth cen-
tury,  being consolidated by larger oligarchies which controlled,
or at least shaped, production and distribution,  thus contribut-
ing to their growing political  influence.   The tug-of-war over
control of Crown administration  that characterized previous cen-
turies had given  way to the realization that  a strong national
government, and by implication, a strong national judiciary,  was
simply good  business.   The struggle between  royal pretenders
which had characterized  the previous centuries was  replaced by
                             - 39 -


internal lawlessness and a growing population, a large proportion
of which was displaced from agriculture and either moved to urban
areas or  created havoc in  the countryside  through brigandry.
There were no foreign lands to be militarily reclaimed, but there
were new lands to be exploited for economic purposes.  militaris-
tic adventurism and the feudal laws  it required was replaced by
economic adventurism and  a new legal framework  to support it.
England had become an equal in  the European community,  and the
state had become, by the time of Henry VIII,  a strong,  central
force both of social control and conflict mediation.

During the sixteenth century,  Henry and Elizabeth were besieged
by demands for legal changes in criminal procedure.   In previous
centuries,  it was the conflicts  between the nobility and crown
and the crown and church operating  within the feudal context of
land and fiscal disputes which shaped law.  The driving force be-
hind legal reform had shifted to groups demanding new definitions
within a neo-modernist society in  which the state,  once having
centralized its control over the judicial machinery, was also ex-
pected to use that machinery  to honor the ideological justifica-
tions it used when consolidating its own power.   The Reformation
Act destroying the power of the church,  laws enacted to control
crime, civil disputes, disruptive behavior,  trade,  population
movement,  as well as the multitude of new taxes to increase rev-
enue,  was essentially carried out through the legitimacy of law
under the guise of representation.

Despite Crown willingness  to use force to  coerce compliance to
royal edicts,  the Tudor revolution was nonetheless a revolution
by statute.   This legal revolution, however,  carried with it a
contradiction in that  the new laws not only  implied new rights
often incompatible with existing ones, but also elevated the role
of law  as a necessary means  of carrying out  Crown authority.
These legal changes promoted the litigiousness for which the six-
teenth century is noted (Hill, 1969:  49), and increased the con-
tributions especially of the gentry and merchants to the develop-
ment of law.  This generated a movement to rationalize, humanize,
and extend the law and its  procedures.   These new laws created
new relationships, obligations and crimes, resulting in inconsis-
tent procedures  incompatible with changing  social expectations
and needs.   Trials, for example, retained part of their medieval
informality but were  now becoming encumbered by  the advance in
procedural rules.   England was  drawing from Renaissance legal
thinking in both philosophy and substance, and the system of jus-
tice,  drawing from its independent roots,  took on a character
much fairer than in Europe[29].

In the sixteenth century, an appellant could still legally appeal
a case through trial by battle, although this was rare.   The in-
creasing number of statutes also  expanded the rights and motiva-
tions of private individuals to litigate,  rules of evidence were
allowing more testimony and written documents into court, and the
role of witnesses expanded.   All of this required new procedures
to accommodate these practices.  This led to the elimination many
medieval writs, the Crown prerogative,  and archaic forms of evi-
dence. These were replaced with a more rational, efficient system
to meet the increasingly complex litigious  needs of a nation on
the eve of the industrial revolution.

Following  the brief  and  irrelevant  reign of  Edward  VI
(1547-1553), the two Tudor Queens did not so much alter the legal
system as shape  through legislative means the  social fabric in
which it was practiced.   Neither Mary (1553-1558) nor Elizabeth
(1558-1603)  significantly altered the legal or judicial machin-
ery,  and in fact maintained considerable continuity from Henry's
period.   Under Mary, and later Elizabeth, the policies of enclo-
sures were reduced, if not abandoned;  Mary prevented restoration
of monastic lands, and as Hill (1969: 32) has argued, the Commons
was able to  use social conflicts to challenge  crown power and
policy.   Mary reversed Henry's policy  toward Rome by re-estab-
lishing the primacy of the Church  through revision of his anti-
Papal legislation.   She did not, however,  significantly change
other domestic legislation,  leaving  both policy and machinery
relatively intact.

Following Mary,  Elizabeth's 60 year reign was a period in which
the use of law, although not its procedures, became a refined and
effective means of consolidating power,  regulating social rela-
tions, and attempting a planned national economy.  Resolving ten-
sions from  rapid domestic change  was compounded  with foreign
threats, especially from Spain and France.  Internally, the oppo-
sition between Catholics and Protestant  groups threatened to de-
velop into a social crisis.   Elizabeth created a variety of new
administrative positions to expand  the machinery of government,
and there was  some feeling that these  positions were too-often
falling in the hands of persons  of "low birth" (Ashton,  1984:
57).   Elizabeth relaxed usury laws which contributed to economic
growth, and her Statute of Artificers, ostensibly economic legis-
lation, had broader significance:

     It was no less--and  perhaps even more--significant as
     an instrument of social control, police, and public or-
     der, a means by which the government,  lacking a civil
     service and a police force,  sought to regulate employ-
     ment and guard against unemployment;   'to help to ad-
     vance husbandry,  to banish idleness (there was no pro-
     vision for compulsory direction of labour);  'to reform
     the unadvised rashness and licentious manners of youth;
     to avoid many untimely and discomendable marriages' (by
     insisting on a long apprenticeship of seven years); and
     'to bring the aged Artificer to  a staid state of liv-
     ing.' The statute  was the government's first  line of
     defence against poverty,  unemployment and the dangers
     to public order associated  with them (Ashton,  1984:
     105-106).

Elizabeth also increased the power  of justices;  they could now
arrest suspects,  deal with various misdemeanors and try any ind-
ictable offense except treason.

Elizabeth reversed Mary's stance toward Rome;  she continued Hen-
ry's opposition to the Church,  because of the fear of cleric en-
croachment, because of Papal Francophilism,  and also because of
Papal support of her rival to the crown,  Mary Stuart.   On the
other hand,  a complete breach with Rome was considered dangerous
because of  England's military and economic  weaknesses (Black,
1959:  7).   Her Act of Supremacy (1559) provided a means of de-
stroying Mary's pro-Rome "reactionary" legislation and in essence
revived the anti-papal statutes of Henry VIII,  which resulted in
Crown assumption of  all national power over  the Church (Black,
1959: 14).

This religious revolution was conducted through legislation rath-
er than military force,  and law became a powerful tool for regu-
lating the social development and  control of a potential politi-
cal  threat while  simultaneously  disrupting  the growth  of
political and religious ideology.  There was not, however, an ea-
sy solution to the problem of Puritanism,  which had evolved into
an intellectual, ideological,  and political force with its sepa-
ratist doctrine of theology.  Since this problem could not be re-
solved, it was simply managed, largely through suppressive legis-
lation,  until the smoldering problem erupted in the seventeenth
century.

By the end of the Tudor period,  a number of substantive changes
had been made that influenced  the future development of judicial
administration.   First, and perhaps most important, the adminis-
tration of law under the Angevins  and especially the Tudors had
become firmly centralized and judicial power had become,  despite
the continued existence of inferior  courts,  located in the au-
thority of the Crown.   While  some remnants of feudal tradition
remained, neither the barons nor the manorial system held econom-
ic or political significance.  Second, the position of law as su-
perordinate to the Crown was  firmly established.   This hardly
prevented abuses of power by the  Crown,  but it nonetheless re-
quired that even the most flagrant abuses be done under the color
of law.   Third, the separation of civil and criminal law was be-
coming more pronounced, and many of the fundamental criminal pro-
cedures to  which we adhere today  had begun to emerge  both in
principle and in practice.  The essential procedures were regular
use of trial by jury, the procedure of "fairness" in hearing evi-
dence, and most important, the writ of habeas corpus, which would
later be  used by the opponents  of the Stuarts as  a political
weapon in the seventeenth century.  Finally, there emerged equity
courts which to some degree challenged the jurisdiction of courts
of common law.  One advantage of common law and the corresponding
courts was the protection against the  personal whim or abuses of
power of individual justices,  or  against ephemeral fads which
changed definitions and sanctions for  offenses.   

On the other hand,  because common law gave primacy to precedent and the test
of time, it was slow to change.  As a consequence, decisions were
not always appropriate for the rapidly changing Tudor period.

     Almost equal in authority to  the courts of common law
     was the court of chancery.   This was really an equity
     court--a court that is, to remedy injustice which might
     ensue from a strict interpretation  of the common law--
     but by this time the chancellor, in his judicial capac-
     ity,  was something more than  a keeper of the king's
     conscience.  His court dealt with cases which fell out-
     side the somewhat cumbrous processes of the common law-
     -for instance, it recognized uses--and,  partly because
     it sat out of term time,  it gradually assumed a juris-
     diction comparable  with that of other  central courts
     (Mackie, 1966: 194).

It must be emphasized that despite  the development in the theory
of legal rights during this period,  the practice of legal rights
was limited to powerful groups:   for the common subject, redress
of grievances remained limited.   This paucity of rights was fur-
ther restricted by the numerous laws attempting to control an in-
creasing number of dispossessed,   landless,  unemployed former
peasants, as well as the emerging class of workers and small mer-
chants.   Laws passed by the state to promote economic interests
conducive to the growth of  industry and commerce compelled semi-
skilled laborers to work in their  crafts and to work in agricul-
ture.   By statute, children were expected to follow the occupa-
tions of their parents,  and limitations of movement were imposed
on workers (Hill, 1969: 57).  Such laws helped preserve a pool of
cheap labor for both agricultural and quasi-industrial districts,
which further strengthening the economic  position of the gentry
at the expense of the landed aristocracy.   The increasing impor-
tance of money and the corresponding importance of wage labor led
to new laws regulating each.   This contributed to the ambiguity,
confusion and contradictions  in the content of  law by creating
economic conflicts and social discontents  that the Stewarts were
not adequately able to resolve.

In sum,  the  Tudor contribution lay in the  expansion of legal
rights to a broader class of subjects.  They somewhat unwillingly
established Parliamentary representation of groups with often an-
tithetical interests to the House of Lords,  created a more cen-
tralized state without external (Papal)  interference in adminis-
tration and law,  and secured a governmental structure conducive
to the emerging economic interests  that provided the impetus for
the industrial revolution.

As Knafla (1977:  7) has observed, this was also a time in which
English humanists  pressured the nation's institutions  to adopt
the love and respect for pure  learning that existed in the uni-
versities, and to modify the form and structure of government and
law accordingly.   For the first time in English history, knowl-
edge had begun to  be used as an instrument to  guide social and
judicial policy,  rather than merely being a subservient partner
in maintaining existing power and privilege.   The sixteenth cen-
tury was a period of  rapid social and political transformation.
Corresponding changes in the sixteenth century were far more dra-
matic,  both in  the extent of change and in  the social trauma
these changes caused.

The Tudor era was marked by  the rise of rational agriculture and
the expansion of a capitalist  structure which destroyed the last
remnants of autonomous production and local independence.  Enclo-
sure laws reduced agriculture, but promoted sheep farming,  thus
contributing to the quality of wool  and boosting the textile in-
dustry's expansion into foreign  markets.   Industries producing
consumer goods flourished, as did the industries of fishing, pro-
cessed goods (glass, cutlery), food (salt, beer, soap, sugar) and
transportation (wagons, cooperage, ships,  roads).   New laws to
protect and promote  production,  as well as  laws to regulate
transportation and redefine obligations  between industrial par-
ticipants flourished.

Unlike the present,  there were no previous models or historical
lessons from which to draw,  and  one function of Parliament was
that of presenting to the crown  those problems for which change
was required.   The redirection of capital from personal consump-
tion to investment aided revenue growth even as it required state
expenditures.   This led to the  reform of fiscal administration
and the corresponding legal apparatus by which to implement poli-
cy.  Relationships between employee and employer were continually
changing.   The stratification that capital,  rather than land,
created transformed power and interests. As ashton (1984: 34) has
suggested, such class stratification became a dominant feature of
Tudor society.   Unlike previous centuries, when social transfor-
mations were slow and replacement of power relations gradual,  in
sixteenth century England  they were rapid.   The  weakening or
elimination of one social group or  legal relations often left a
vacuum in which there was neither time nor possibility for smooth
transition and accommodation.   Unlike  state policies prior to
Henry VIII, which were designed to restrict capitalist relations,
the sixteenth century was marked, especially after the 1550s,  by
attempts to enhance them.

Spurred by the integrative force of a national economy,  England
was becoming more homogeneous in culture, language,  customs and
law.   Theater, literature, and similar factors had the affect of
creating a national culture, and this homogeneity,  coupled with
the need to promote harmonious conditions to facilitate industry,
had the affect of beginning a  trend toward unification that was
to last until the late 1700s.  The monarchy was both strengthened
and weakened by a centralized state  based on an interlocked na-
tional and international economy.  In this system, state resourc-
es were used to facilitate economic growth and protect the privi-
leges and rights of a growing proportion of the population,  who
reaped their benefits.   The state  was strengthened through the
increased fiscal and  judicial power it was  able to consolidate
and wield,  through mobilization of a strong army and police sys-
tem, and through both the right and power to define and enact the
"proper order of things." It was weakened, however, by these same
characteristics.   The army, although drawing most officers from
the ranks of the nobility,  was democratized,  especially in the
lower ranks;  the thriving economic conditions,  which the crown
promoted and protected,  expanded the  numbers and power of mer-
chants and industrialists;  the expectations of the population as
a whole grew and became political weapons in Parliament's opposi-
tion to crown policies;  and the unregulated growth of capitalism
brought by unemployment, dislocated farmers and workers,  and ur-
ban overload and thus created ecological, criminal, and distribu-
tion problems far beyond the ability  of Tudors or early Stuarts
to resolve them.   Thus the legitimacy of crown power was threat-
ened.  The law became a tool  of oppression used to quell social
opposition,  and the courts often  took on a quasi-control func-
tion.  Poor laws, work houses, houses of correction, and vagabond
laws had quieted  the poor but left the  underlying problems in-
tact.

Different social needs bred different ideologies,  both political
and religious,  by which persons  attempted to accommodate them-
selves to their lot.  Class divisions, wider than at any previous
time in England,  generated discontent and proved fertile ground
for seeds of new religion to grow.  The growth of printing, revo-
lutionized by Johann Gutenberg in the 1520s,  contributed to both
discontent and the expansion of law.   New political ideas stimu-
lated by the Renaissance,  and promoted the growth of humanism in
Europe.  These ideas crept into English legal, political and so-
cial thought in the seventeenth century.   Religious ideas, too,
spread rapidly as literature became  more available to larger so-
cial groups, and contributed as well to a growth in literacy, al-
beit still beyond  the reach of the bulk  of the population[30].
The officer ranks of the military became more open to the non-no-
bility,  and this contributed to the reduction of its class-based
nature and made the military less an instrument used in factional
struggles.

By the end of the Tudor period,  court procedures were relatively
fixed.   Civil and criminal laws were distinct, as were the court
procedures and jurisdictions for hearing relevant cases.  Law had
taken on a universalistic character previously unknown. The state
had begun using laws not only to protect its hegemony, but to re-
solve conflict, facilitate commerce and industry,  and to settle
private disputes in the civil sphere.   It was not until the con-
tinued expansion of  industrialism and the social  tensions this
generated that the  rights of the nobility were  extended to all
subjects, which has guided the development of our own procedures.
At the beginning of the seventeenth century,  the combination of
class and ideological, especially religious, difference presented
the Stuart kings with problems they were never able to resolve.

THE STUART PERIOD

Although James I (1603-1625)  himself made no dramatic changes in
the law,  this was nonetheless a period of social change and re-
pression.   The succession from Elizabeth to James I was orderly,
but he was  being challenged by Protestant forces  from one side
and demands by economic interests for more power sharing from an-
other.  Social cleavages were beginning to again disrupt the cen-
tral state,  and religion and  class pressures were the driving
forces.   England had changed, the balance of power shifted, and
the system of common law was in jeopardy.

     The growing organization and  jurisdiction of the court
     of Star Chamber,  the creation of the various subordi-
     nate Councils throughout the country,  the rapid devel-
     opment of the  court of Chancery and the  Court of Re-
     quests, and the growth of the jurisdiction of the court
     of Admiralty threatened the supremacy of the common law
     system.   All these courts acted upon principles and by
     means of a procedure unknown to common law (Holdsworth,
     1956: 508).

These problems were  later complicated by Charles  I's need for
revenue to support military ventures  and to protect colonial ex-
pansion abroad.   Further,  the abuses of the Star Chamber mobi-
lized popular opinion as well as powerful interest groups against
it, and conflicts arose over attempts to abolish it.   Its viola-
tion of the principles of law,  its apparent abuse of fundamental
tenets laid out in the Magna Carta,  the perceived excessive pen-
alties it imposed,  and its use as a means of exerting Crown pre-
rogative contributed  to unified  opposition especially  among
groups with newly-created economic, political and ideological in-
terests. Law became one focal point in social struggle.   Seven-
teenth century England was stepping into the industrial era,  and
the legal changes, like those in the political,  economic and so-
cial spheres,  were often dramatic,  sometimes traumatic.   The
1600s were marked  by changes in the substance  of criminal and
civil judicial procedure impelled by  the last clash between the
dying landed aristocracy and the emergent gentry and economic or-
der.   The clashes contributed to the movement for legal reform,
especially in  the decade prior to  the regicide of  Charles I
(Veall, 1970).   Conflicts over taxation, liberties of subjects,
religion, land and trade,  authority and property again strained
the legal machinery to find rational,  consistent resolutions to
these new problems (Briggs, 1983: 134).   The printing press be-
came a formidable weapon in political  debate,  and law became a
means for both protecting and suppressing freedom of speech.  The
middle of the sixteenth century was characterized by the improve-
ment of roads, the rise of urban areas,  especially London,  the
rise of printing, the growth of international law,  the introduc-
tion of a planned economy,  and the final disappearance of feudal
remnants.   

The King's authority was increasingly used to enforce
policies by unpopular and arbitrary methods (Briggs, 1983:  140),
and this contributed to a loss  of legitimacy of Crown authority
and in the courts.  The powers of arrest and seizure were used by
the Crown to suppress dissent, discontent,  and the new "radical-
ism" in politics and religion.   This  led to resistance by the
king's opponents, and prompted strenthening of habeas corpus law.
James had abused the law by  abolishing judges who refused to de-
cide cases to  the king's liking and  circumventing statutes to
control his opposition, a practice continued by Charles.
The Two Charles.

Charles I (1625-1649)  found in law a convenient weapon for har-
assing or disposing of those who would challenge its power.  Dom-
inant legal issues of the period  include the power of arrest and
freedom of speech.   The latter was particularly important, since
many political issues took religious form.  In a period of relig-
ious revival and conflict, the growth of Protestantism,  dissent
in and challenges to the policies  of the established church and
state edicts that functioned to thwart such growth,  the freedom
to publicly express these ideas became  a major public and ulti-
mately legal issue.

Like many of his predecessors,   when pressed for increased rev-
enues,  Charles attempted to raise  them through coercion in the
form of forced loans.  There occurred a debate over the extent of
the king's power and whether it exceeded the common law adjudica-
tory process.   The result was the Petition of Right (1628) which
declared that the crown could  raise money neither through forced
loans nor without the explicit  consent of Parliament.   It also
contained protections against billeting of troops,  martial law,
and above all, arbitrary imprisonment, and these ultimately found
their way into the Bill of Rights of the U.S. Constitution.  bil-
leting of troops, martial law, and above all, arbitrary imprison-
ment.   Although Charles violated the Bill's provisions within a
year,  it nonetheless provided both legal power and precedent for
his opposition and contributed to the  list of crimes with which
he was ultimately charged and executed two decades later.

     The Petition of Right thus stands as the first of a series of 
     enactments in the  seventeenth century by which the writ of 
     habeas corpus  was made an effective mechanism for the protection 
     of the right of personal liberty (Perry and Cooper, 1959: 71).

Opposition to this oppression led to the Habeas Corpus Act (1640)
which abolished the  Star Chamber and all  the conciliar courts,
and provided that anyone imprisoned by the King or his council be
brought to trial without delay  and cause of imprisonment shown.
Abolishing the Star Chamber intended to put writ of habeas corpus
on firmer basis, but effective means for enforcement was not ful-
ly established until  the subsequent Habeas Corpus  Act (1679).

These legal  protections had little  immediate impact  on other
courts.  But they did signify an explicit change in the expansion
of the writ and provided a  model on which subsequent legislation
for protecting liberties would be based.

The Stuart reign  was interrupted by the regicide  of Charles at
the hands  of Puritan opposition  who saw the  King's continued
abuses as violating both the laws of Enlgand and the laws of God.
To justify the execution of the monarch,  the only such regicide
in English history, his opponents appealed to law,  citing numer-
ous violations of both common and statutory law.  This was a form
of popular uprising, led primarily by Puritan dissenters in alli-
ance with non-gentry freeholders, commercial and other interests.
It was not strictly a religious upheaval.   Rather, as in twenti-
eth century Ireland,  class divisions often coincided with relig-
ious ideology, conflating the two.   James had held that his au-
thority derived  directly from  God and  that he  was supreme
lawgiver.   Parliament, he contended, was merely an advisory body
(Ashley, 1966:  59).   This posture was continued by Charles II,
and the policies  he enacted alienated especially  those of the
lower classes and those who had  been excluded from power by the
Royalist monopoly.  As a consequence, opposition to the laws that
protected the power and property arrangements of one group tended
to be linked especially to Puritanism, and the king did not hesi-
tate to use law to challenge this opposition.
Cromwell and the Commonwealth.

Following the trial of Charles II and the civil war, Oliver Crom-
well intended to  establish a Commonwealth derived  from natural
law based--in theory at least--on the "will of the people" rather
than royal authority.   Cromwell, by most accounts, was committed
to liberty of conscience and the view  that the laws of the crown
were not above the laws of God.  The theory of natural law shaped
the legal philosophy of the  Commonwealth and provided the justi-
fication for many of the proposed reforms.   It is from this be-
lief in liberty of conscience that many of the basic rights later
embodied in this  English Bill of Rights,  the  charters of the
American colonies, and the U.S.  Bill of Rights were derived, es-
pecially the freedoms of thought, speech, press and trade.   This
Free State abolished the House of Lords and the office of king as
"unnecessary, burdensome,  and dangerous to the liberty,  safety
and public interests of the people of this nation" (Buchan, 1937:
324).   One of the first tasks of the leaders of the new Common-
wealth following the execution of  Charles I was the reformation
of law.   While the Rump Parliament that sat following the execu-
tion of Charles had delayed reform,  Cromwell's new assembly at-
tempted to codify and reform the system:

     pickpockets and horse thieves were  not to be executed
     for their first  offense,  that women were  not to be
     burnt alive, that genuine bankrupts were to be released
     from prison.   They  passed an act for  the relief of
     creditors and poor prisoners.   They  framed a law for
     civil marriages  and introduced one for  the speedier
     probate of wills.   They examined  schemes for the ad-
     vancement of  learning and the protection  of tenants.
     They resolved  that the Court  of Chancery  should be
     abolished,  and proposed the ending  of tithes and lay
     presentations to benefices without, however,  providing
     for any considered alternatives (Ashley, 1966: 273).

Because of the distrust of lawyers and the old legal system, many
of the reforms were impractical,  reflecting the tone of the time
rather than the needs of the new system.   Examples of conserva-
tive Parliamentary legislation during the Commonwealth period in-
clude strict enforcement of the Sabbath,  penalizing swearers and
blasphemers, and imposing the death penalty for adultery (Ashton,
1984: 389).   Many suggested changes were never implemented, and
many others did not survive  the Restoration.   The fundamental
changes can have been summarized by Holdsworth (1956: 429):

     The King's Bench became the  Upper Bench;  the Common
     Pleas remained as before; and it was not till 1657 that
     the jurisdiction of the court  of Exchequer was in any
     way affected;  some of the Palatine jurisdictions were
     included in the judge circuits;  the reform made by the
     Act of Settlement in the  tenure of the judges offices
     was anticipated  when they were appointed  during good
     behavior.   But  otherwise the machinery  of justice
     worked much as usual.

The Commonwealth lasted two years after  his death in 1658,  and
although the bulk of his actions  were swept away by the restora-
tion, it nonetheless provided a legacy for future generations.
Post-Commonwealth England in the mid-seventeenth century, as Hill
(1969: 135) has observed, marked the complete end of medieval and
Tudor England and marked as well a transition in the relationship
between the judiciary and royal authority:

     The state  which Thomas Cromwell had  reconstructed in
     the fifteen-thirties was swept  away in 1641--the cen-
     tral government's power to rule without Parliament, its
     control over the localities.   This revolution in gov-
     ernment was much more important  than that of a century
     earlier;  the old state was not restored in 1660, only
     its trappings.   The prerogative courts did not return,
     and so the sovereignty of Parliament and common law re-
     mained.   The Privy Council henceforth had no effective
     control over local government.   Taxation and therefore
     ultimately policy were controlled by Parliament.

The Post-Commonwealth Period.

The restoration of the monarchy  returned Charles II (1660-1685)
to the throne, and it was hoped that he would restore the nation.
The restoration also assured that Parliament, primarily the House
of Commons, exercised control over finances,  reducing one cause
of social and legal friction.   Charles  was aided by a national
tendency toward conservatism and support of the status quo, which
contributed to the stabilization of its  power and return to the
basic pre-Commonwealth legal machinery.  In the years immediately
following the restoration,  the Crown could do little or nothing
by itself except fill offices and  carry on the daily administra-
tion (Clark, 1965:  3).   The inadequacy of judicial staff, the
abuses of officials, lack of specificity in defining and protect-
ing rights,  and the rapid  social transformation in which legal
ideas and procedures were not  correspondingly altered,  all of
which contributed to the strain  on the existing judicial frame-
work.   There were few legal protections written into post-resto-
ration acts, and the legal framework remained unchanged:

     Although the organization of  the legal profession al-
     tered considerably, no substantial change took place in
     the law courts.   The attempt to substitute the English
     language for French  and Latin in law-books  and legal
     proceeding was abandoned.   Nor  was there any marked
     change in the local administration  by justices of the
     peace, though. .  .there were changes in municipal cor-
     porations.   The attempts of the  law reformers of the
     first two Stuart reigns to  introduce ideas and methods
     from Roman law and other sources extraneous to the com-
     mon law of England were not resumed,  the more so since
     the institutions specially favorable to these attempts,
     the prerogative courts,  were not revived.   Where the
     change came about was in  the apparatus of central con-
     trol and in the Parliamentary  machine which kept such
     contact as there was between central control and public
     opinion (Clark, 1965: 9-10).

The power of  the peers had declined,  the power  of the middle
class, especially the gentry and merchants, increased.  Industri-
al power was in transition,  shifting both economic activity and
population to the north and  northwest,  realigning economic and
political needs and groups.  Although over 80 percent of the pop-
ulation were still rural,  agricultural economy was disintegrat-
ing, being replaced by commodity production and exchange, and the
importance of capital as the driving force in English economy be-
came dominant.  Through all of this, the principles of common law
and the principles  of "fairness" survived the  Stewart period.
But it was now coupled to the  expansion of an autonomous and bu-
reaucratic system of rational procedures decoupled from royal in-
fluence.   Landowners were no longer dependent upon the Crown and
gained absolute ownership of  their estates.   This dramatically
altered the status  of legal subjects by  reducing Crown power,
tipping the balance of judicial power in favor of citizens,  and
created a new legal relationship on  which the power of the state
was based.   Charles was sympathetic to the Catholic Church, and
wanted to strengthen the Crown  against the overwhelming power of
the Anglican party in the Cavalier Parliament by gaining the sup-
port of the dissenting Protestant group.   This led to an unsuc-
cessful combination  of political maneuvering and  repression in
which he resumed anti-dissenter policies.

The Habeas Corpus  Act of 1679 was perhaps  the most significant
piece of legislation under Charles.  Parliament responded to con-
tinuing abuses of the power of  arrest and took advantage of the
need for conciliation by passing this  act,  which has been de-
scribed "largely  a piecemeal  repairing of  the common  law"
(Sharpe, 1976: 18).   It provided a fundamental guarantee of lib-
erty for, in principle, all subjects, and explicitly allowed that
neither procedural inadequacy nor unnecessary delays in trials.
Following the  death of  Charles,  the  short reign  of James
(1685-1689)  produced little except opposition.   He was a weak
ruler sympathetic to Catholicism, which in a time of colonial ex-
pansion threatened by the French  and Spanish was intolerable to
Protestant economic interests.  Unlike Charles, who had attempted
to rule the nation through  Anglican squires and parsons,  James
allied himself with the Catholics (Briggs, 1983:  133).   In re-
sponse to these changes, the Dissenters rebelled and brought from
Holland the Protestant William of Orange (1688-1702).  Tories and
Whigs had dispatched to William of Orange (1689-1694)  a request
for assistance to aid in  restoring their preference for English
liberties.   William landed in 1688 and marched unopposed to Lon-
don.  The royal army under James collapsed and the king took ref-
uge in Louis XIV's court.    The Settlement of 1688-89 preserved
the monarchy, and it also reasserted the non-monarchical elements
of the constitution.

It is under William that the last significant act relevant to our
English story was played out in the Bill of Rights (1689).   Per-
haps the greatest  contribution of this Bill lay  in the clauses
safeguarding the liberty  of the individual (Perry  and Cooper,
1959).   These clauses established in statutory form the protec-
tions of the earlier Declaration of Rights,  which had been sub-
mitted to the  new king as a condition of  his proclamation ten
months earlier.  The earlier Act was intended to redress specific
grievances that had arisen under the Stuarts,  and to clarify le-
gal ambiguities of  law and liberty.   The  subsequent Bill of
Rights sharply curtailed the prerogative  of the sovereign,  and
perhaps most important,   possession of the Crown  now became a
statutory rather than hereditary right.  Increased liberties, re-
ligious toleration,  protection against arbitrary arrest and rep-
resentative taxation were  elevated to the status of  Law of the
Land.  Above all, it raised the principles of the Magna Carta and
common law as ideological justification these rights, thus bring-
ing 500 years of legal history full circle.

                           Discussion

The history of the English legal  system was uneven and episodic.
Some periods were marked by dramatic growth in liberties,  others
by structural tensions  and social conflicts out  of which these
this growth emerged.   But all are interrelated in that they gave
rise to ideological,  juridical and philosophical transformations
that demonstrate the process of legal change.

The law  of early medieval  England emerged from  the so-called
"dark ages" to maintain the feudal  structure of land tenure and
military and fiscal obligations.   Law was not originally a tool
employed so much to "suppress the masses," for this occurred more
effectively through military force and cultural domination.   Law
was rather a  means of mediating inter-class  conflict among the
aristocracy as various groups vied for political or economic pow-
er (which in mid-medieval England was often the same thing).
The legal history of England, then, was not simply a natural, ra-
tional expansion of liberty evolving  by some immutable logic of
its own.   It was a weapon  used by diverse groups to challenge,
protect, maintain, and otherwise promote social,  economic or po-
litical advantage and create a world more to their liking.   The
history of law into the middle of the seventeenth century was the
history of men, power and privilege.   Women had little role and
few rights in this struggle,  and law was moved by struggles be-
tween and among competing male interests.

From its origins in the  undeveloped restitutive law of Anglo-Sa-
xon England to its further structuring under Edward the Confessor
and the Normans,   both the legal structure and  the content of
statutes reflected first a concern  with maintaining a preferred
set of social relations and only  incidentally a concern with ab-
stract liberty.   Early attempts at central control, such as the
witan and similar king's councils,  were replaced after the elev-
enth century by such bodies as the Curia Regis,  King's Council,
felonies, and common law.   The common law decisions and the new
legislative enactments were  designed to protect and  expand the
Crown's power and authority.   They also functioned as a steering
mechanism to resolve disputes  arising from unresolved questions
in the feudal system, such as land tenure,  inheritance,  crown
prerogative and reciprocal obligations  between Crown and barons.
Despite dramatic  regional differences in juridical  practice in
medieval England, these divisions did not, as a rule, have an im-
pact on the transformation of law except as a problem of defining
judicial jurisdiction as the number of courts increased.   Their
areas of responsibility became one strategy for acquiring and us-
ing courts as a tool in  opposing adversaries.   Up to the thir-
teenth century,  legal changes occurred primarily through intra-
estate conflict:   The clergy,   Crown,  barons,  and rising
freeholders and gentry attempted to secure political and economic
gains by using law.

There were also conflicts reflecting  local and individual inter-
ests as various courts or  administrators jockeyed for increased
jurisdiction and resources that  would enhance regional advantage
or personal careers.   The transcendent importance of law as ex-
isting above the sovereign, while not fully practiced,  was none-
theless recognized as at least a tacit operative principle, which
meant that even royal policies had to be couched in the legitima-
cy,  if not in the actual practice,  of established legal proce-
dures.

The growth and development of law emerged, then, not from its own
inherent "logic." It was shaped by the tensions between political
rivalries and changing  social conditions in which  old forms of
legal practice  became inappropriate.  To  paraphrase Thompson
(1975:   260), the old legal forms were bent in order to legitim-
ize the status of new land owning and commercial interests.   In
this sense, Thompson (1975: 261) is correct in arguing the unten-
ability of the  dogmatic Marxian view that law is  an element of
superstructure distinct from, but created by,  the forces and re-
lations of production.

Although the law was used to solidify the power of the sovereign,
and later the state,  it was also  used by other groups to chal-
lenge state power.   Beginning with  the Barons who drafted the
Magna Carta,  both the content and procedures of the legal system
were used to limit autonomous power  of the Crown,  but as these
practices became a legitimate force,  the underlying ideology be-
came a means to justifiy and rationalize state decisions.   This
chapter has suggested that the  appearance of a unified medieval
law is a myth;  there was continual progress (or process) occur-
ring in which  law was a useful tool for  attempting to create,
maintain, or alter power and privilege.   The transformation into
the industrial age led to a growing number of groups opposing ex-
isting social or political relations.   These groups found in law
either a convenient  weapon to expand their rights  or a useful
protection against abuses of power.  The outcome of this was that
beginning in the late fifteenth century,   law became as much an
ideological as a material weapon in  conflict.   In the 1600s it
assumed a partially autonomous status from existing royal author-
ity in the 1600s and formed  the ideological basis of legal power
as a universal and just mediator in resolving disputes.  The man-
ner in which this fluid, mediating, and double-edged character of
law arose during the Middle Ages and changed--and was changed by-
-England's industrial  revolution subverts the  dogmatic Marxian
argument that law  is wielded primarily by one  class to control
another:

     If the law is evidently  partial and unjust,  then it
     will mask nothing, legitimize nothing, contribute noth-
     ing to any class's hegemony.   The essential precondi-
     tion for the effectiveness of law,  in its function as
     ideology, is that it shall display an independence from
     gross manipulation and shall seem to be just.   It can-
     not seem to be so without  upholding its own logic and
     criteria of equity;  indeed, on occasion,  by actually
     being just (Thompson, 1975: 263).

The basis of our own legal  system was formed from thirteenth and
fourteenth century procedures and from  the philosophy of rights
and corresponding statutes  protecting them which arose  in the
seventeenth.   These periods display the relationship between so-
cial conflict and legal change.    It is against this background
that U.S.  colonial law, transplanted from England to a land with
disparate national cultures, emerged.   Although different social
forces were operating,  the relationship between legal change and
conflict remained, and the seeds of our own Constitutional system
were planted.   It  was this legacy which shaped  the status of
rights possessed by the legal  subject,  and provided the legal
foundation on which contemporary prisoner litigation is based.

    5. THE COLONIES, THE CONSTITUTION AND THE "IMPERIAL JUDICIARY"

(omitted)


                          BIBLIOGRAPHY

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