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"

     Premise 1: Truth is  a 5-4 decision  by the Supreme  Court (Dan
     O'Neil, 19** Odds Bodkins).

     Premise 2: .  .  .the 1984 term  [of the Supreme Court].  .
     .seemed to produce  what one commentator has  called a
     "jurisprudence of  idiosyncrasy" (Edwin  Meese,  III (1985).

     Conclusion: Truth is idiosyncratic.

Law has become one means by which the tension between freedom and
social control is mediated.   Just as law  can be used as a tool
for social emancipation, it can also be used for repression.  The
English judicial  concepts and administration that  had evolved
over the centuries were employed  to establish political and eco-
nomic domination over its colonies.  This created competing defi-
nitions of rights and procedures, of judicial and legislative au-
thority,  and  of jurisdiction  between England  and colonial
subjects.  The history of our Constitution is thus the history of
resistance to repressive law and the  effort to define the nature
of liberty and the scope of state authority.  It has its basis in
intra-class conflict,  primarily between financial and commercial
interests of the two countries,  the English attempting to secure
advantage through regulatory law,  the Colonial opposing such attempts.

The previous chapter described how social tensions and subsequent
responses shaped the content of law,  judicial structure and the
concept of individual rights.   It also described how the rule of
law became partially autonomous became to the state.
This section will trace the emergence  of the judiciary as a na-
tional power, and describe the manner in which not the judiciary,
but social conceptions of rights and the status of legal subjects
began to change immediately after  ratification of the Constitu-
tion.

When the Barons  rebelled against the authority of  King John at
Runnymede, they drew for ideological inspiration from a distorted
and highly romanticized notion of the  system of law under Edward
the Confessor.   Similarly,  those who rail against judicial au-
thority in the 1980s hold  an equally distorted and romanticized
conception of the Constitution.   Their claims are actually more
in line with the principles of the Articles of Confederation than
with the Constitution.   This chapter describes the emergence of
our federal judiciary in order  to recognize prisoner litigation
as consistent with  the judicial philosophy of  the writers the
Constitution,  two centuries of federal  judicial practice and a
conception of rights  that has guided a  millennium of jurispru-
dence.

LEGAL FUNDAMENTALISM

U.S.  Attorney General Edwin Meese (1985:  7) has expressed hope
"for a day when the court returns  to the basic principles of the
Constitution." His concern,  common among judicial conservatives,
was over

     an inaccurate reading of the  text of the Constitution
     and a disregard for the  Framers' intention that state
     and local governments be a  buffer against the central-
     izing tendencies  of the  national Leviathan  (Meese, 1985: 6).

The view that current federal judicial decisions,  especially in
the areas of civil liberties and  expansion of rights in criminal
proceedings and for  the rights of prisoners,   represents "bad
law." These  critics have  argued that  these rights  "make no
sense," and has Chief Justice Warren  Burger has asked,  "If it
doesn't make good  sense,  how can it make  good law?" (Duscha,
1969).  These critics have argued that the expansion of rights is
based on the judiciary's flawed  interpretation of both the Con-
stitution and of U.S. political history.  This chapter challenges
this claim:  It is the critics, not the so-called "rights indus-
try" who  have selectively filtered  law and events  to support
their own ideological predilections.

Two of the most important  principles that provide current justi-
fication for the Supreme Court  to review prisoner petitions are
the duty to  protect fundamental Constitutional rights  and the
right to review at the national  level judicial decisions or leg-
islative actions taken by individual states.   The protection of
legal rights by judicial means  developed gradually over the cen-
turies;  the emergence of judicial review, however,  is somewhat
more recent.

Judicial review refers to practice of  court review of the deci-
sions of other, usually inferior (or lower) court decisions.   In
the seventeenth century the English  practice was expanded to in-
clude court review of legislative action  as well review of judi-
cial decisions.   Judicial review  originally functioned to pre-
serve consistency of court decisions with common law doctrine and
to assure the legality of legislation.   When the English monarch
was sufficiently strong,  judicial review  of Crown activity was
ineffective, and served to legitimate royal authority.   When the
crown was weak,  because of either an ineffective ruler or strong
opposition,  review served as a moderate check against crown au-
thority.   In the American colonies, by contrast, there was less
opportunity for domination of the  judiciary by a single central
power,  and the history of judicial review developed differently
than the English counterpart.

Judicial review in the U.S.  has evolved into perhaps the single
most important means of defining, refining,  and protecting legal
rights.   It is often taken on faith by critics of Supreme Court
activism that the original framers did not intend to allow sweep-
ing powers of national review of state actions.  Contemporary ju-
dicial critics who  perceive "intrusion" of federal  courts into
the state domain often argue that  such action is actually uncon-
stitutional,  and allows judges to vote their personal predilec-
tions rather than deduce legal principles (Berger, 1977;  Bloch,
1958; Glazer, 1975; Morgan, 1984;  Meese, 1985).   These criti-
cisms, however, are based on several mistaken assumptions.   jus-
tification[31].   First,  these critics invariably allude to the
Tenth Amendment (1791) to "prove" their thesis:

     The powers not  delegated to the United  States by the
     Constitution, nor prohibited by it to the States,  are
     reserved to the States respectively, or to the people.

This has historically been interpreted to mean that no individual
state may create or process law  in a manner which violates Con-
stitutional principles.   The Tenth Amendment, however, expressly
states,  in the clause ignored  by Supreme Court critics,  that
states do  not possess powers  prohibited by  the Constitution:
Second, and equally important, to claim that the original framers
did not intend for federal review  of state law is simply wrong.
The early legislative documents and  the subsequent activities of
the Supreme Court indicate that  this function was both intended
and implemented in the initial years of the Republic.   By recon-
structing a romantic interpretation of the so-called "intents" of
the original framers,  the meaning of broad prescriptions becomes
reified and takes  on a life independent of  what was intended.
Such reification serves to  distort Constitutional principles and
thus translates a political ideology  into a judicial philosophy
in which the  appearance of immutable "truths"  are derived from
the authority of a "sacred text".   Finally,  although judicial
policy has undergone cyclical shifts over the past two centuries,
the history of judicial intervention began in the decades follow-
ing ratification of the Constitution and the enactment of the Ju-
diciary Act of 1789.  These factors tend to be ignored by contem-
porary critics of the Supreme Court.   This selective perception
of historical factors obscures the  linear development of the use
of courts and law in protecting rights.

To better understand both the  social and philosophical basis of
prisoner rights, it is useful to trace the manner in which rights
have been defined and applied  in our judicial system.   Perhaps
the primary issue in the debates over judicial review lies in the
role of the federal courts  in deciding state matters.   Critics
claim that intervention disrupts  the balance between individual
states and the federal government, violates the historic function
of the judiciary,  and represents  an intrusion into affairs of
state that the  Constitution mandates be left  the "the people."
Criticisms of prisoner litigation  appears especially vulnerable
to this argument,  since it is argued that federal courts are to
distant and too uninformed to decide  local law and order issues
for state officials."  Such criticisms,  however,  derive from a
revision of history based on  selective reading of the Constitu-
tion,  dismissal of the historical  antecedents that have shaped
current judicial philosophy,  and an abysmal ignorance of federal
and state legislation that,  when violated,  provides cause for
federal relief in  accordance with established law  and policy.
The three camps in this debate may, for temporary convenience, be
divided into federalists,  in  the twentieth century associated
with political liberalism, and anti-federalists.   Nationalism is
a useful term  to identify those who favor a  strong central au-
thority as a way to unify practices and policies from federalists
who still favor a significant degree of state autonomy.

Federalists former tend to see the interpretation and application
of rights as contingent on the  changing needs of society.   The
federal government is the  appropriate and constitutionally-man-
dated mechanism for mediating this process.  Anti-federalists, by
contrast, tend to adopt a romanticized view of rights as they are
literally specified in  the Constitution,  They tend  to ignore
those factors underlying  the practice of rights  and reify the
literal meaning of  the Constitution rather than  recognize that
meanings are contingent upon the social conditions which exist at
the time of interpretation.   Anti-federalists are commonly asso-
ciated with  political conservatism,  and feel  federal powers
should be limited.  Using the imagery of "democracy of and by the
people," they argue that states alone  have the right to make and
implement policy.   Federalists, by contrast,  hold to the view
that the Constitution explicitely provides the federal government
with the legitimate  power and authority to  decide those issues
that raise a constitutional issue or  that contain issues of in-
ter-state consequence.   Such issues, they argue, are far too im-
portant to be  decided on the basis of  potential regional bias,
and require  uniform standards consistent  with the Law  of the
Land.   As with most debates that are highly emotional and ideo-
logically-based,  it is difficult to reason people out of a posi-
tion into which reason did not lead them.  Contemporary anti-fed-
eralists speak as  though the alleged judicial  activism of the
past decades is something recent.   In a sense, they have re-in-
vented the wheel,  since this  debate simmered in the mid-eight-
eenth century, and boiled after the Colonial break with England.

Those who lean toward a nationalist  perspective view the role of
the federal judiciary as breaking down regional or local practic-
es.  The underlying premise is that in a technologically advanced
society, media, transportation, values, and practices become more
unified.  In this view, diverse local practices may have a disru-
putive effect on the social stability,  economic growth and cul-
ture of the society at large.    The central government thus be-
comes the "steering mechanism" by  which a degree of homogeneity
is created and social conflicts resolved (Habermas, 1975;  O'Con-
nor, 1975).  This view recognizes the changing role of the feder-
al government in legislative and judicial activity.   Hence,  in
this perspective,  a judiciary of "original intent" is a chimera
that cannot be  attained--even if we wished  to--because of the
historical forces that have shaped and altered society.

THE COLONIAL PERIOD, 1600-1776

Early colonial law did not  directly reproduce English law,  it
nonetheless drew from the English tradition,  and both civil and
habeas corpus rights of prisoners have been built upon this lega-
cy.   It also drew heavily from English and French political phi-
losophy.   In the colonies there was no native political philoso-
phy.   Justification for  rights was drawn from  three sources:
First, from English and enlightenment philosophy, second, puritan
theology and third,  was from  the requirements of carrying out
commerce and industry.  The development of colonial law benefited
from the emergence  of political philosophies that  provided the
intellectual and ideological justification for individual liberty
and weakened the legitimacy of the sovereign as the fount of law.
Philosophical ideas articulate rights and are,  as a consequence,
"living signposts" denoting the status of a particular concept of
rights at a specific period of history.   In the seventeenth cen-
tury, these signposts led legal scholars to develop theories that
elevated the individual to greater  subject status in relation to
the sovereign or state.
The seventeenth and eighteenth centuries have become known as the
"Age of Reason," in part because of dramatic intellectual activi-
ty but also because of attempts  to apply rational principles to
the governing of society.  The seventeenth century English polit-
ical philosophy of Thomas Hobbes and John Locke,  the eighteenth
century French philosophes,  and in  the late 1700s Thomas Paine
and other radical writers combined to influence the rights in the
U.S. Constitution, Guided by the writings of Locke, colonists de-
veloped a view of limited government in which the primary duty of
the central body was to protect the rights of citizens.   A gov-
ernment that violated this responsibility,   as it was perceived
the Crown had done in the eighteenth century, lost its legitimacy
as a governing body.

These political  ideas effected subsequent political  rights in
several ways.  First, they created an explicit philosophy for and
justification of the expansion of  political freedom as fundamen-
tal and inviolable  to human existence.   This  extended basic
rights to all social subjects,  rather  than to a privileged few
and provided the justification  for opposition when infringements
occurred.   Second, these rights were inalienable, and there was
no justification for for their violation.   This philosophy con-
tinues to  have a dramatic  impact on twentieth  century civil
rights law, as some groups, for example prisoners,  challenge the
rationale by which  they have been systematically  excluded from
Constitutional protections.   Third,  Seventeenth century legal
philosophy altered  the conception of  the relationship  of the
state to the subject.   While the  subject had the obligation to
fulfill certain social or political responsibilities,  the state,
too, had an obligation to protect the citizen.  No longer was the
extension of  rights left to the  good will of  the sovereign;
rights existed independent of the power  of any agent to restrict
them,  and the  role of the state became that  of protector of
rights and mediator in those conflicts which infringed upon them.
These ideas influenced the seventeenth century political develop-
ment in the American colonies  by creating formal structures for
implementing and protecting individual liberty.  Imported philos-
ophy shaped legislation by explicitely delineating the rights and
obligations of the state and  its subjects.   As a consequence,
governmental structure was modified to  introduce or expand such
principles as limitation of  state authority,  sentative govern-
ment, habeas corpus and fair trials.

To speak of a homogeneous law  in the early American colonies is
somewhat misleading, since the Dutch, French, Spanish and English
each brought their own customs with  them as they settled the new
land.  As Friedman (1975) has argued, there were as many "coloni-
al systems" as there were colonies,  and many of the problems of
colonial unification centered on the  problem of differing legal
systems.   The English became dominant, however, and they imposed
their traditions on the evolving  political culture.   But even
among the English there were  disparate legal customs and prefer-
ences stemming from diverse religious,  economic interests,  as
well as from the different social needs of each region.
Systems of justice began simply  and gradually grew more complex,
slowly drawing more from the English  system as economic and po-
litical interdependence grew,  and as an expanding population of
English settlers were assimilated into  what was becoming an in-
creasingly common culture[32].   In seventeenth century America,
the dominant settlements tended to be run by Puritan clergy,  and
despite a more-or-less common heritage,  the content and practice
of justice  developed idiosyncratically to meet  the particular
needs of each community.  However, the Puritan grip on the polit-
ical and cultural life of the New England colonies had diminished
substantially by the early seventeenth century,  and by the early
eighteenth century,  the Puritan doctrine  was not a significant
factor[33].   Sacred law thus replaced secular law,  and English
common law became the dominant judicial form.  Because of the new
conditions and the opportunity to restructure new societies, how-
ever,  the common law of England was not always applicable to co-
lonial conditions.

Faced with uncertainty and the need  for structure,  one of the
first tasks  of the new  colonies was drafting  their governing
charters.   These charters did not create new rights, but rather
reaffirmed in written form existing notions of freedom.  Colonial
charters did not, as a whole,  waste space justifying the reasons
for claiming rights.   The writers assumed that such a rationale
was sufficiently obvious,  and simply  wrote the rights into the
documents.

The first colonial charter was that of Virginia (1606), which es-
tablished the principle  that American colonists would  have the
same rights as English.   Subsequent  documents were built upon
these rights, and all shared one common feature: They established
statutory safeguards to individual liberty  which were felt to be
the basis of English law,  even if not fully extended to all sub-
jects in England.   The king, however,  had the authority to ap-
prove or reject the charters,   but rejection only inflamed the
growing political and social tensions between crown and colonies.
As a consequence,  even though he occasionally vetoed some char-
ters or individual provisions, many survived.  The Ordinances for
Virginia (1618), the charters of Massachusetts Bay (1629),  Mary-
land (1632),  Connecticut (1639),  and the Massachusetts Body of
Liberties (1641), for example,  were drafted prior to comparable
English legislation and placed limits on sovereign power and sep-
arated their own  laws from those of  the English.   Subsequent
charters included religious freedom (e.g.,  Charter of Rhode Is-
land, 1663), basic safeguards in criminal procedures such as tri-
al by jury, liberty of conscience, "fair" trials (Concessions and
agreements of West New Jersey, 1677),  bail (Frame of Government
of Pennsylvania, 1682),  and right to counsel (Pennsylvania Char-
ter of Privileges,  1701).   Almost every right in the Constitu-
tion's Bill of Rights was safeguarded in two or more of the state
Constitutions a century earlier.   In fact,  the title "Bill of
Rights" or "Declaration of Rights" was given by eight states to a
separate group of guarantees of liberty and most remaining states
inserted protections of human rights  among their general provi-
sions.

The Colonial Legacy

It was, then,  the colonial legacy drawn from British common law
and enlightenment philosophy, rather than particularly new or in-
novative home-grown concepts of liberty,  that formed the current
principles of social and political rights from which contemporary
civil rights are drawn.   Hence, it is not so much the concept of
rights that has changed over the centuries;  what has changed is
how they are expressed, and how and to whom they will be granted.
Despite the fairly uniform acceptance of a similar body of rights
in the colonies, their expression was shaped by several basic so-
cial factors.   First, most colonists were middle class burghers,
freeholders and others to whom  English agricultural life was fa-
miliar (Andrews, 1968).   The colonists thus shared a relatively
common background and expectations.  This,  coupled with similar
needs for establishing economic and political viability, began to
impose some legal homogeneity on diverse social and religious so-
cieties.  Second, the spirit of Protestant dissent was crucial in
defining rights.  The doctrine of individual liberty stemmed from
the Puritan conception of freedom of speech,  assembly and relig-
ion.   These rights existed in principle under English law,  but
religious dissenters and  political activists found them  to be
consistently violated, and they wanted explicit protections.  One
function of the early charters was  thus to limit the capacity of
a central power  to impose a particular set of  beliefs on those
who did not share the same views of government.   Third, the need
for economic freedom in commerce, industry and trade required au-
tonomy from the  restrictive laws which English  kings passed in
the seventeenth and  eighteenth centuries in attempts  to secure
economic advantage.   These laws  restricted colonial trade and
stifled nascent industry,   and law itself thus  became a focal
point of conflict[34].  Fourth, the friction between crown admin-
istrative personnel and  the colonial bourgeoisie added  to the
tensions between rulers and  ruled.   Over-zealous enforcement,
military repression, ethnocentrism and administrative abuses exa-
cerbated the conflict  between ruler and ruled,   which further
prompted colonists to use law as a way to define rights,  even if
there was not  always corresponding success in  fully attaining
them.   Fifth, the American colonies were faced with a situation
similar to that of England a century earlier in that the preroga-
tives of the crown were not clearly defined (Pound,  1975:  55),
and equally strong  claims could be made for  either limiting or
preserving the crown authority.   Finally, Colonial lawyers were
united in their opposition to the  application of English law to
the Colonies,  and Pound as identified eight "immemorial rights,"
guaranteed by centuries of law, that were habitually violated::

     (1.)  the imposition of taxes on and raising of revenue
     from the colonies without the  consent of the legisla-
     tive body representing them;  (2.)  the unification of
     all powers of government of  the colonies in a central-
     ized administration  at Westminster  which continually
     neglected or even positively  injured the interests of
     the colonists in the interest  of those who had influ-
     ence on British politics; (3.) deprivation of jury tri-
     al by extending admiralty  jurisdiction at the expense
     of the common law; (4.)  providing for trials away from
     the vicinage so as to put  parties to expense and anno-
     yance and deprive them of  the advantage of good repute
     among their neighbors;  (5.) infringement of the right
     to assemble in order to  consider grievances and peti-
     tion the king for redress; (6.) quartering soldiers and
     keeping a standing army in  time of peace without get-
     ting the consent of the colonial legislature. . .  (7.)
     requiring oppressive security from a claimant of seized
     property before he could claim  it and defend his prop-
     erty rights. . .   (8.) referring to those laws and to
     instructions to the royal governors as to industries in
     the colonies,  interference with merchants and traders
     not in time of war,  contrary  to the interests of the
     colonies and without any reference to colonial legisla-
     tures (Pound, 1975: 71-72).

In 1768,  Parliament established the Courts of Vice-Admiralty in
all the colonies for the  purpose of more effectively recovering
crown revenue.   In response,   the first Continental Congress
drafted The Articles of Association (1775).   The Articles called
for civil disobedience to British law,  and declared that English
Crown had extended its powers beyond  their ancient limits by de-
priving subjects of such rights as trial by Jury (Carson,  1971:
37).   This led  to the convening of  the Continental Congress
(1774), the Declaration of Independence (1776)  and the Articles
of Confederation declaring a "perpetual union" (1777).

THE CONSTITUTIONAL PERIOD: 1776-1789

We tend to think of the  Constitution as reflecting a single set
of ideas, as the product of unified thinkers, or as a set of uni-
fied ideas produced  in a single voice.   This is  far from the
truth.   In fact,  the Constitution was the consequence of many
diverse voices, of many different ideas,  and of different social
and political needs.  The Constitution was, in short, the product
of conflict, compromise negotiation and conciliation.

The Articles of Confederation

The Articles of Confederation, drafted and accepted by the Conti-
nental Congress in 1777,  was  the first formal document guiding
the operation of the new nation.   The Articles signified a shift
from the colonial to the state system,  and were written to pro-
tect states from the abuses of a centralized power.   Unlike the
Constitution,  which was placed in supreme position as Law of the
Land,  Article Two of the earlier document preserved the autonomy
of individual states,  and subtly placed  the national body in a
subordinate, and ultimately unworkable, position:

     ...independence, and every power, jurisdiction, and right,
     which is not by this confederation, expressly delegated
     to the United States, in Congress assembled.

The Articles  were not meant  to create a  powerful centralized
structure superordinate to the new states.   The document was in-
stead a set  of administrative procedures which  did not specify
rights, but rather established broad working arrangements between
the various states.   The Articles provided for common currency,
common protection and free trade and access between states.  They
did not, however,  provide a useful political philosophy by which
to unify or  guide diverse groups possessing  often incompatible
needs, policies or goals.  Nor did they provide for a central ex-
ecutive department,  a federal judiciary,  the power to regulate
commerce or to prevent discriminatory trade practices,  and there
was no mechanism to generate revenue.   The document contained no
national agenda, no specific character, and above all,  no cohe-
rent political structure for implementation.   Above all,  there
was no provision for a central  steering authority that could me-
diate the emerging regional commercial problems, a lesson ignored
from the experience of medieval England.   In some ways the Arti-
cles were an antiquated set of principles politically more appro-
priate to seventeenth century  post-feudal fiefdoms and regional-
ism which  protected private interests  rather than a  means of
promoting national stability and economic growth.

The failure of the Articles prompted a  move to draft a new Con-
stitution based on  a stronger federal system out  of which came
the document which has lasted  to the present.   Some observers
have contended that the Convention itself  was a violation of the
Articles' provisions,  since the charter should have been altered
only by popular  vote.   A popular election of  a convention to
amend the Articles  would itself have been  unconstitutional be-
cause the Articles  set up a federation which could  act only on
states, not on individuals.  Thus, a popular election would have
violated the powers of the document, and at any rate,  there ex-
isted no clear  provision for amending the  the Articles written
into the document (Brown, 1965: 157).

The Constitution.

The Constitutional Convention  met in Philadelphia in  1787 and
adopted the new Constitution.   Eight  states ratified it in the
first year, and the required ninth state, Rhode Island,  ratified
it in 1788.  It went into effect in March, 1789.
The Articles of Confederation had generally reflected the philos-
ophy of nineteenth century advocates  of states' rights and their
twentieth century epigones by assuming  that the primary protec-
tion of liberties would be undertaken by individual state govern-
ments Under the Articles,  each  state retained its sovereignty,
freedom,  independence,  and powers and jurisdiction not rather
than a centralized judiciary.  expressly delegated to federal au-
thority.   The Constitution, by contrast, was a fundamental shift
away from the regionalism and local  autonomy provided for in the
Articles,  and represented as well a shift from explicit states'
rights to a strong central control,  and created an estate system
with the executive,  judiciary and legislature in equal partner-
ship.

Article III of the Constitution placed judicial power in a single
"Supreme Court" and extended this  court's authority to all cases
"in law and equity" arising under the Constitution.   The princi-
ple of judicial  review of state actions  was explicitly estab-
lished both in the Constitution itself (see Article III, Sections
1 and 2 and the fourteenth amendment),  and in the intents of the
legislators as articulated by debates  of the Constitutional Con-
vention.

The ideological debate, however, raged on.   Contemporary critics
of federal intervention in states'  rights in civil matters argue
that such authority exceeds the  intents of the original framers
in defining judicial review.   This view is belied by the debates
during the Constitutional Convention:
     .li . . .both sides of the debate conceded the proprie-
     ty of appellate review over state court decisions,  and
     that a supreme court should  be established by the Con-
     stitution itself.   The  controversy concerned whether
     appeal of state court decisions  to a national Supreme
     Court was a sufficient  mechanism for insuring national
     authority and the uniformity  of application of federal
     laws (Barrett and Cohen, 1985:  43).

Some states introduced specific proposals to define the relation-
ship of the federal judiciary to the states.   For example,  the
Virginia Plan of the Constitutional  Convention of 1787 provided
for a national judiciary authorized to  negate any law that con-
travened the principles on which the new Constitution was formed,
a principle advocated by many convention participants.
The Convention ultimately rejected judiciary veto in favor of ex-
ecutive veto, but the ratifyng debates clearly indicate there was
certainly no unanimity  among the framers in  opposition to such
judicial powers,  and judicial review was in fact provided for in
subsequent Constitutional language.  This power is implied in the
"Supreme Law of the Land" doctrine  specified in Article VI which
states that the Constitution

     . .  .Shall be the supreme Law of the Land; and the
     Judges in every State shall be bound thereby, any Thing
     in the Constitution or Laws of any State to the Contrary 
     notwithstanding.

The Constitutional powers of federal  courts were further clari-
fied by the  Judiciary Act of 1789 (1 Statutes  at Large,  72).
This Act provided that the power to review and act upon the deci-
sions of state courts lay explicitely  with the Supreme Court in
several types of cases,  including  those in which decisions or
laws were "repugnant to the constitution, treaties or laws of the
United States," or when laws or decisions clearly violated a Con-
stitutional principle (Barrett and Cohen, 1985:  44).   The Act
further established the principle of  judicial review by the Su-
preme Court for both federal and state courts.   The Act provided
for a Supreme  Court and six justices,  and as  a concession to
those who wanted assurances that state  and regional law would be
preserved,  district courts were  established within each state.
The Act authorized  all federal courts to  issue various writs,
such as habeas corpus,  and  further specified that all federal
courts possessed the power to  grant new trials.   Although this
Act has been amended and modified in the past two centuries,  it
provides the fundamental framework by  which the judiciary oper-
ates to this day,  and offers irrefutable evidence against those
who claim that recent Courts  have usurped powers originally in-
tended by framers of the Constitution.

Constitutional rights and procedures were quickly accepted,  and
they established a firm philosophy on  which to build a national
judiciary.  The basic principles included the following:

     (1.)  the idea of a fundamental law,  the "law of the
     land," to  which all official and  governmental action
     was bound to conform,  which law  was to be applied by
     the courts in the course  of orderly litigation accord-
     ing to the common law, and could be invoked against of-
     ficials by anyone aggrieved; (2.) the idea of immemori-
     al rights of  Englishmen,  secured by the  law of the
     land,  and of the common law in which they were recog-
     nized as the birthright of  Englishmen and so of Ameri-
     cans. . .   (3.) the idea of authoritative declarations
     of these rights in charters and bills of rights.  .  .
     (4.) the idea of an independent judiciary, as set forth
     in the English Bill of  Rights of 1688,  to administer
     the fundamental law,  and of  lawmaking by a body dis-
     tinct from the executive;  (5.) the idea of courts re-
     fusing to apply statutes  in contravention of fundamen-
     tal law (Pound, 1975: 61-62).

This did not  mean that conflicts between  federalists and anti-
federalists were resolved,  however.    The question of states'
rights remained a smoldering issue  in national politics.   The
Virginia and Kentucky Resolutions of  1798-99 aimed at the Alien
and Sedition acts typified the concerns of anti-Federalists.  The
Sedition Act (1798)  was passed by federalists to curtail politi-
cal speech which  attacked government policy during  a period of
tense relations with France.   The Virginia General Assembly ar-
gued this was an intrusion of federal power on state domain,  and
passed a protest "against the  palpable and alarming infractions
of the Constitution," arguing that  such powers were "positively
forbidden" by the amendments.   The Alien and Sedition Acts were
never tested in the courts,  but they surely would have survived
under the federalist-controlled judiciary at the turn of the cen-
tury.   Despite their expiration,  they provided a precedent for
repression of  "undesirable" political  activity that  survived
through World War I and the Palmer Raids of 192*.

The stakes  in the states'  rights debate were  political power
rather than juridical principle,  and  the southern states espe-
cially argued  for state supremacy  because of  its politically
weaker position in relation to the north.   The South was solidly
agricultural, while the north was developing a strong infrastruc-
ture based on industry,  finance and commerce.   The federalists
dominated the judiciary and the legislature,  and southern states
perceived themselves, not without considerable justification,  to
be politically  subservient to their northern  neighbors.   The
slavery issue periodically  re-emerged during the War  of 1812,
generally raised by the entry of new states into the union.   The
ban on the  importation of slavery in 1808  aggravated these re-
gional tensions, although over a quarter of a million slaves were
illegally imported up to the civil war.
The principles of federalism dominated the language and implemen-
tation of, the Constitution; nonetheless, the Document represent-
ed a compromise between two competing positions.

     One school,  later to be articulated in Antifederalist
     philosophy,  saw the new government as a potential de-
     stroyer of the rights of  states.   This group wanted
     federal law to be adjudicated first by state courts and
     only on appeal by the United States Supreme Court.  The
     other school,   represented by Hamilton  and Madison,
     feared that the parochial prejudice of the state courts
     would deal  unjustly with litigants from  other states
     and other countries. . .  A compromise on court organi-
     zation was reached:  Federalists obtained lower federal
     courts,  and antinationalists placed them within "state
     containers" (Richardson and Vines, 1970: 22).

The Federalist Papers are revealing  for providing insights into
the intents of the original framers.   Hamilton, especially, ar-
gued that the federal government's role was, in part,  to assure
that state legislatures were to be limited by constitutional pro-
visions, thus providing at least some basis for the argument that
the U.S. Supreme Court properly has jurisdiction over state crim-
inal and civil procedures dealing with constitutional issues (FP:
475).   He considered the Constitution to be the standard for the
construction of state law (FP, 482), and although he,  like most
others, believed in limited government,  it was presumed that the
Constitutional principles would apply to the states.   One way of
assuring some consistency, it was felt,  was to establish federal
district courts in each state.   But it was clear that individual
state courts were to be reasonably autonomous,  but that federal
courts were the proper forum for  appeal for questions of appro-
priate jurisdiction.   Hamilton also argued recognized the inter-
dependence of law  when he argued that  all legislatures should
look beyond their  own borders to the legal  principles of other
jurisdictions, even of other countries (FP:  493).   Hence, the
original intents were, at least for some of the framers, not nar-
row or parochial, but global and extensive.

It has been argued that  our Constitution embodies the interests
of a dominant class.

     Since government  is primarily concerned  with making
     rules to  determine property relations,   the classes
     whose rights are to be  determined must obtain from the
     government the  rules which will favor  their economic
     interests.   Thus constitutional  history becomes the
     process by which various economic  groups seek to pro-
     tect their  particular interest by making  or altering
     the fundamental law of the land (Brown, 1965: 27).

In his useful but flawed class-based interpretation, Beard (1965)
has observed that  the constitution was established  by personal
property interests or  capitalistic classes as opposed  to small
farmers and debtors.   Beard did not argue, as many think he did,
that the division in the country  was between the owners of prop-
erty, who favored the Constitution, and the propertyless, who op-
posed it.  The split was more subtle: Between personality or per-
sonal property (e.g., movable assets,  a concern of merchants and
bankers, and realty (e.g., land),  a concern of small farmers and
debtors[35].

But as Brown (1965:  113) has observed, one of the most striking
features of the debates was the  fact that practically every fea-
ture of the Constitution was subjected to the question of whether
"the people" would accept it.

Contemporary critics of judicial  power perceive modern judicial
theory to be based on a theory of centralization which,  at least
until the Burger court,  has elevated the judiciary to what some
see as the most influential  of the three governmental branches.
The beginnings of "law by national judiciary" were framed in this
first Constitutional period.  The definitive scope of this power,
however, remains debated to this day,  contributing to considera-
ble disagreement over how far the  Supreme Court may or ought to
go in pursuing its original mandate.   Following Goldman and Jah-
nige (1985:  231),  we can trace five broad historical cycles in
U.S. political and judicial history.   These were 1) the federal-
ist-Jeffersonian (1789-1828); 2) the Jacksonian (1828-1860);  3)
the First  Republican (1860-1896);  4)  the  Second Republican
(1896-1932); and 5) the New Deal (1932-1968).   A sixth, which we
might label The  Retrenchment Era,  began with  the election of
Richard Nixon in 1968 and has  been more-fully implemented in the
1980s by the Reagan administration.    Each of these periods was
shaped by broader social and  political forces,  and each illus-
trates shifts in  the role and function of the  court and helps
ground the emergence of prisoner  litigation in a historical con-
text.

THE FEDERALIST-JEFFERSONIAN PERIOD (1789-1828)

Current Constitutional activity  reflects a long process  in the
transformation of legal theory, and this transformation began im-
mediately following the Constitution's ratification.   The feder-
alist-Jeffersonian judicial period contains,  as Goodman and Jah-
nige (1985: 231) have observed, two distinct sub-phases.   First
was a period Constitutional consolidation,  as the Supreme Court
cautiously defined its  jurisdiction and the scope  of its legal
and political powers.  The guiding theories of such early Consti-
tutional theorists as  James Wilson and John  Marshall held that
the relationship between  states and the federal  judiciary was
based on the federalist theory of  separation and balance of pow-
ers and upon the distribution of  power among three co-equal com-
ponents.  The second phase, from 1800-1828, was that of Jefferso-
nian democracy.   Guided  by the Federalist Chief  Justice John
Marshall,  the courts consolidated  judicial power--and thus the
Constitution--as the supreme Law of the Land.   Despite apparent
differences, these two phases

     .li .  .  .still had the overall unity of the federal
     government under the control of  a fairly select elite
     of merchants  and planters concerning itself  with the
     problems of Constitution building, union,  and the cre-
     ation of economic and political  stability in the face
     of intrigues  and tensions both foreign  and domestic
     (Goodman and Jahnige, 1985: 231).

In both phases,  the Supreme Court faced the problem of defining
the scope of the powers of the new federal government, as well as
the relationship of its own power  and goals in relation to both
the national executive and legislative  branch on one hand,  and
the new states on the other.   Banks,  transportation companies,
and other enterprises that operated  between states raised numer-
ous legal and federally-related questions that had never been en-
countered previously.   As a consequence,  the subject status of
corporations and  their relationship to the  national government
became an issue.   Could a corporation based in one state but op-
erating in several be taxed by those states,  or only by the host
state?  Could the federal government intervene in interstate com-
merce?   Could corporations or states enact policies or laws that
would effectively put the federal government in a subordinate po-
sition to corporations?

The judiciary resolved  virtually all of these issues  in a way
that assured strong  federal control and a  social and political
environment conducive to national commercial interests,  and Was
the status of a corporation of one  state set up in another sub-
ject to the laws of the home  or host state?   It was generally
ruled that corporations, although not "persons," nonetheless held
certain rights beyond its mere corporate character,  and the fed-
eral government had  regulatory and statutory priority  over the
states.

Three early Supreme Court decisions  typify how the Supreme Court
helped solidify federal power.  Marbury vs. Madison (5 U.S.  ((1
Cranch)) 137,  1803),  established the principle of judicial re-
view; Fletcher vs.  Peck (10 U.S.  ((6 Cranch)) 87, 1810) estab-
lished the inviolability of contracts,   placing them beyond the
reach of state courts; and McCulloch vs.  Maryland (17 U.S.  ((4
Wheaton)) 316, 1819)) affirmed the doctrine of precedence of fed-
eral rights.

Marbury v.  Madison grew out of federalist opposition to central-
ized power and  attempts to pack the  national judiciary through
John Adams' appointment of  "midnight judges"--so called because
their commissions of appointment were rushed through in the final
hours of the his outgoing administration.   Supreme Court judges,
solidly federalist, unanimously declared unConstitutional the Re-
publican attempt to interfere with the appointments.   This deci-
sion solidly established the centralized and semi-autonomous pow-
er of the court in its  first decades,  and defined the federal
government's obligations  in mediating social  tensions through
systematic use of law, power, and resources.   Marshall held that
the judiciary was the final interpreter of the Constitution,  and
in skirting sensitive political issues,  he also established the
framework and early legitimacy for  an "activist" court (Thomas,
1976: 18-22).   Marshall concluded that no original powers could
be vested in  the Supreme Court beyond those to  which the Court
was restricted by the Constitution (Carlson, 1971:  217).   Al-
though Marshall disclaimed all jurisdiction not given by the Con-
stitution or by federal law,  he invoked the 14th section of the
Judiciary Act  of 1789 which  permitted "original suits"  to be
brought before the Supreme Court,  and established the principle
that the court itself could determine  the nature of federal pow-
ers in the Constitution.   The significance of this decision lies
in the reasoning by which it established the dominance of federal
judicial power  as ultimate arbiter of  Constitutional questions
and established as well the Supreme  Court as an equal among the
Executive and Legislative branches of government.

The second decision,  Fletcher v.  Peck,  was the first case in
which the Supreme Court ruled a  state statute to be in conflict
with the constitution.   The issue  centered on a land contract
which the state of Georgia had  rescinded over a previous approv-
al, and involved a land scandal (Yazoo land fraud) and bribery by
two U.S. senators and three prominent judges, including a Supreme
Court justice.   This decision was important for two reasons:  It
was the first time that an  important state statute was voided by
the Supreme Court for violating  the "general principles" of the
Constitution.  Second, as Miller (1982: 66) has observed, for the
first time the Supreme Court "invented  law," since there were no
judicial precedents  or legislative policies to  guide decision
making.

The war of 1812 marks a transition period in U.S.  history,  in
part because national priorities shifted, and in part because the
war created a social climate analogous in many ways to the 1980s.
The war of 1812 was costly by standards of the time; it dislocat-
ed business and foreign trade, raised the national debt consider-
ably, debased currency values,  and exposed glaring cracks in the
national political facade (Nye and Morpurgo, 1965: 337).   After
the war, the public was less interested in external foreign rela-
tions and more in expanding  the territory and economic structure
of country.   The post-war period of  1814-1828 was known as the
"era of good feelings," so-called because, as in the 1980s,  the
country was "feeling good" about itself.   There was a trend to-
ward ultra-nationalism, characterized by the Monroe Doctrine,  a
stronger military, solid uniform national currency,  a protective
tariff for industry, rapid construction of infrastructure (roads,
bridges, canals),  and territorial expansion.   It was an age of
the business entrepreneur, expanding industry (textiles,  steel,
transportation), and finance.   Republicans strengthened the doc-
trine of nationalism in political and commercial enterprise,  fa-
cilitated by the Supreme Court.  The trend toward a strong feder-
al system continued to which  the Supreme Court contributed,  as
the third case, McCulloch v. Maryland, illustrates.

McCulloch addressed the status of a national bank, which had been
a controversial topic for a quarter-century.  Two basic questions
were raised: 1) The constitutionality of an act incorporating the
Bank of the United States, and 2)  the power of a state to tax an
agency of the federal government.   Marshall's decision acknowl-
edged the limits of federal powers, while also leaving the feder-
al government  with the discretionary  powers to  determine the
means by which it would carry  out its functions.   The decision
prohibited the  states' right to  tax federal agencies  on the
grounds that if  one agency could be taxed by  states,  then so
could all other federal enterprise.  This last decision held that
the federal government  is granted powers even if  they are not
specifically stated in the Constitution  if those purpose of its
acts are consistent with the Constitution and in the national in-
terest.   This early ruling explicitely defined the relationship
of individual states  as subordinate to the  federal judiciary,
thus establishing the principle of federal supremacy.   Marshall
reminded posterity that  the Constitution was a  living document
capable of meeting the various crises of human affairs.
If judicial expansion of national powers necessarily "erodes" the
powers of the states,  then the  Marshall court should be recog-
nized as the first cycle of this erosion.   These three decisions
typified how,  through judicial  means,  the federal government
slowly established supremacy over the  states from the inception
of the Constitution.   It was  done by integrating the original
philosophy and intents of the  framers with the unforeseen needs
of a growing economic and political system.  These original deci-
sions,  which provided the precedents and judicial philosophy of
late-twentieth century federal court  activity were well within,
rather than outside of, the language and purpose of the Constitu-
tion.   As Wolfe (1982) has argued, Marshall was faithful to the
Constitution, and carefully carved his decisions from the intents
of the founders of "democratic  constitutionalism." When seen in
this light, the legal theories on which federal courts base their
intervention in prison affairs is not  merely the result of civil
rights activists or  "idiosyncratic law," but has  deep roots in
our early Constitutional history.

THE JACKSONIAN PERIOD (1828-1860)

The Era of Good Feeling was spawned by nationalist pride, promot-
ed by federal politicians and  served primarily the interests of
the growing economic interests of  the northeast.   But after 15
years of growing nationalism, there occurred a backlash.  In 1828
the Democrats  elected popular war  hero Andrew Jackson  to the
first of his two terms as president.   Jackson contributed little
to the movement which bears his name, however,  and the He served
mostly as a  symbol of broader social forces  (Nye and Morpurgo,
1965:  380).   A political pragmatist rather than a doctrinaire
ideologue,  Jackson campaigned against Jeffersonian Democracy and
what he perceived as the minority rule of northeastern financiers
and industrialists.   Jackson led an attack on national institu-
tions, especially banks and the Supreme Court, which he felt were
tools by which the powerful minority maintained its position.  He
departed radically from what has become known as Jeffersonian De-
mocracy, which dominated the previous two decades of U.S.  poli-
tics and government.   Jefferson's  political philosophy,  like
Jackson's, was based on a form of agrarianism.   But Jefferson's
philosophy was more  appropriate to a non-expanding  society and
economy.  Although Jefferson had opposed unrestrained centralized
power as inimical to democracy,  he and his followers nonetheless
believed in,  and created the political structure for,  a strong
national authority as  a means to develop  commerce and finance.
Jackson, by contrast,  developed policies based on expanding land
values, diversified agriculture, and speculative opportunities:

     To Jackson, the federal government was not simply a po-
     liceman to keep order,  but a parent who gave a helping
     hand when  it was needed--but  only when  the citizen
     asked for it.   The Jacksonian did not want the govern-
     ment to control his affairs  except to the degree that
     he requested it to do so.  He was never loath (nor were
     the Grangers and Populists later) to call on Washington
     for assistance, for roads, canals, credit or subsidies;
     yet at the same time he fiercely resented any intrusion
     of federal power into his  own domain of authority (Nye
     and Morpurgo, 1965: 384).

Jackson's influence on the judiciary was considerable.   The Jef-
fersonian-Federalist era had been dominated by Chief Justice Mar-
shall, and was characterized by decisions that strengthening both
the federal government and the judiciary;  Jacson reversed this.
During his eight years,  Jackson was able to appoint five of the
then-sitting seven justices,  including  elevation of his friend
Roger T.  Taney to the position of Chief Justice,  although not
without considerable  difficulty in his  confirmation hearings.
Although not judicially timid,  Taney guided the court to a mid-
dle-of-the road position,  tended to side with Southern states on
states' rights issues, particularly slavery and commerce.  By at-
tempting to  placate Southern political concerns  while ignoring
their underlying sources,  the Supreme Court sank "into obscurity
and impotence" from which it did not emerge until after the civil
war.

To some,  the Taney court was archetypically conservative because
of its support of business interests and willingness to stamp ap-
proval upon legislative and executive policy.   Others view it as
a liberal activist court for  its decisions which extended long-
term judicial power.   Much like the  Burger Court of the later
twentieth century,  the Taney court defies easy classifications,
illustrating how difficult it can  be to precisely categorize the
political stance of  the judiciary.   The most  far-reaching of
these decisions was the Dred Scott decision (Scott v.  Sandford,
S.C. 19 Howard, 393-633, 1857), the first major civil rights case
in U.S.  judicial history.   It involved not only the issues of
slavery,  legislative jurisdiction and judicial power,  but in-
volved as well the subject status of slaves and the Constitution-
al rights such a status  conferred.   The Court's decision reaf-
firmed the supremacy of judicial power even while promoting,  in
the short run, states' rights.   At issue in the Scott case, os-
tensibly over the legal status of a slave,  was actually an ideo-
logical struggle over the Missouri Compromise.  The Missouri Com-
promise (1820)   had been intended  by Congress to  settle the
politically sticky question of slavery.   It permitted slavery in
Missouri,  but prohibited it to the west of the Mississippi River
and in portions of the Louisiana  Territory to the north of Mis-
souri.   Because of this Act,  Southern politicians hesitated to
admit additional free states,  correctly perceiving that it would
shift the balance of power to the North, especially to abolition-
ists.   Southerners contended that the compromise was unconstitu-
tional,  and it was repealed  by the Kansas-Nebraska Act (1854),
which, among other provisions,  left the issue of slavery to the
voters of individual states.  The repeal satisfied most Southern-
ers, but many abolitionist politicians were outraged, and the po-
litical harmony of the nation was threatened.  The Scott decision
was an attempt  to provide a Constitutional  balance between the
two positions, but it satisfied neither.

Dred Scott, the plaintiff,  was a Missouri slave who was taken by
his owner to the free states of Illinois and Wisconsin,  where he
married and  resided with his  family and owner  from 1834-36.
Scott's supporters sued for his freedom in Missouri courts.  They
claimed that under the provisions  of the Missouri Compromise he
was legally emancipated  because he and his  family had resided
sufficiently long in free territory.   After years of litigation
and see-saw  decisions in Missouri  state and  federal district
courts,  the case finally came before the Supreme Court in 1856,
but a decision  was postponed until the following  year to avoid
making it an election year issue.   When the case was finally de-
cided,  Chief Justice Taney identified two primary legal issues:
1)  whether the  court had jurisdiction in the  case (the court
ruled it did), and 2) whether, on the merits of the case,  Scott
was indeed "free."  The court ruled against Scott  on the latter
issue.   Ironically, this case had minimal impact on Scott.   He
was emancipated immediately after the  decision by his owner--the
brother-in-law of the deceased original owner--who was elected to
state office as an abolitionist (Lewis, 1965).

Taney's legal logic  in writing the majority  opinion has often
been questioned,  but the significance of the outcome should not
be overlooked.  This decision, while satisfying to conservatives,
had profound long-range consequences for twentieth century liber-
alism.   Some consider the Dred Scott decision to be the founda-
tion of contemporary judicial activism  because the Supreme Court
for the first time arrogated to itself (and to every other feder-
al court)  the right to settle socio-political conflicts by judi-
cial decision,  thus dramatically increasing judicial and politi-
cal power of the judiciary (Boudin, 1968: 3).

In addition to attempting to mediate the slavery question,  Taney
also attempted to  balance national and state  commercial inter-
ests.   The focus of litigation during his tenure had shifted to
ships, bridges,  land,  or canal companies,  and banks (Boudin,
1968: 15).  His "Cooley Rule" (Cooley v.  Board of Wardens of the
Port of Philadelphia, 52 U.S.  ((12 Howard)) 299, 1851)  stemmed
from a conflict between state  and federal regulation of commer-
cial transportation, and typifies the philosophy of Taney's court
toward business.   At issue was the degree to which states could
regulate commerce (in this case water transportation).  While ac-
knowledging and not repudiating the scope of federal jurisdiction
in regulating commerce  specified in the Judiciary  Act of 1789,
Taney also recognized the right  of individual states to regulate
matters in their immediate interest.   The decision was intended
to be limited in scope,  but  in practice it struct a temporary
balance between states' rights and  federal powers and slowed the
trend toward judicial nationalism.   It granted partial powers to
states to regulate interstate commerce on one hand,  while on the
other made clear that it was the Court, not congress,  that would
define which commerce could be regulated  by the states and which
demanded a single uniform rule (Miller, 1982: 69).

Taney remained Chief  Justice until the close of  the Civil War.
During this period,  the Court's judicial philosophy shifted away
from expansion of court powers of judicial review,  which charac-
terized the Marshall court,  to a more moderate position.   The
court also ruled, in Barron v. Baltimore (7 Pet. 243, 1833), that
the first ten amendments applied only to federal,  and not state,
courts, which limited the scope of federal jurisdiction until af-
ter the Civil War.   Taney led a trend, begun in the 1820s, which
slowed, but did not reverse, the tide of nationalism.   His court
functioned in part to mediate those political and economic inter-
ests that had  not fully benefited from the growth  of the first
decades of the new Republic,  and  a court that became known for
its judicial restraint nonetheless took  an activist role in de-
ciding political issues in favor of a preferred definition of so-
cial order.  Judicial doctrine and political dogma coincided, and
the court explicitely assumed the powers to mediate conflict, and
has retained them since.

At the close of the Jacksonian era,  the country had changed dra-
matically from  the isolated  agricultural and  small business
structure dominant during the Colonial era.  Slave labor account-
ed for nearly  30 percent of the U.S.   labor force (Aronowitz,
1973:  145), and the composition of the skilled working class had
shifted.   After 1850,  native born  artisans who had dominated
their crafts prior to the Revolution remained;  Western European
skilled immigrants moved into the textile, mining and iron indus-
try; displaced farmers moved into urban areas; and Irish and Chi-
nese peasants appeared en-masse to fill unskilled positions (Aro-
nowitz, 1973: 146).   For Blacks, especially after the civil war,
this led to intense competition for  economic status in the labor
groups,  and the legal and political infrastructure did not match
the changes required to pursue  "life,  liberty and happiness."
This changed dramatically after the Civil War.

THE FIRST REPUBLICAN PERIOD (1860-1896)

The Civil War era marks the beginning  of a dramatic shift in the
political and judicial history of civil rights.  By 1860, politi-
cal and regional conflict had  shattered former party alliances,
and the once-dominant Whigs and  Democrats suffered internal ten-
sions and were no longer an effective political force.   The Kan-
sas-Nebraska Act (1854)  had split  the Democrats along regional
lines;  Southern Democrats supported the act, Northern Democrats
and abolitionists were virulently opposed.   The Republicans had
opposed the Kansas-Nebraska act.
in 1860, the Republican presidential candidate,  Abraham Lincoln,
won in a four-way race with less than half the popular vote.  The
election of Republicans,  and thus of representatives of Northern
political and economic interests,  led to the final breach in the
Union, and ultimately to secession of the Southern states.   For
the next quarter century, the Republicans solidified national po-
litical control,  and dominated the Supreme Court through succes-
sive appointment of two Chief justices,  both from Ohio,  and a
stream of Republican justices.   Among the issues brought before
the court were property and voting rights,  interstate commerce,
and the seemingly never-ending question  of the status and rights
of business.   During the civil war,  the federal judiciary had
stayed out of  the way of the federal  legislative and executive
branches (Miller, 1982: 73), and the Supreme Court was relatively
quiescent, although it did review war related cases.  The Supreme
Court was,  for example,  called upon to specifically define the
conflict.  Was it a war, a rebellion, or an insurrection?  A def-
inition was necessary for dealing with military blockades,  sei-
zure of foreign and domestic ships,  and especially for resolving
secessionist issues after 1865.   It was ruled that the Rebellion
was only an insurrection,  that there was no de facto Government
possessing legal efficacy and recognition  thus could not be ex-
tended to the pretended government of th Confederacy.
The decade following the war has  been called the "zenith of fed-
eralism" (Carson, 1971:  501).   and the judiciary made it clear
that it had exclusive authority  to review the Constitutionality
of state policy on national issues.   Post-war political schisms
had not disappeared,  and one function of the federal government
was to steer  the social system through  potentially disruptive
conflicts that threatened to disrupt  the fragile harmony of re-
construction.  The federal government used its status as military
victor to reunite the states and  define and implement a national
agenda, **MISSING TEXT??**

The problems of re-unification,  economic development along capi-
talist-industrial rather than  agricultural-slavery models,  and
the protection of freed slaves occupied considerable federal leg-
islative and judicial attention.   Two issues dominated the judi-
ciary:   First was reconstruction and civil rights.   The civil
status of former slaves and of  Northern free Blacks in Southern
territory, the dissolution of the Southern system of agricultural
labor and the relationship of all  Blacks to the Constitution de-
manded immediate attention.  Second was the increasing problem of
regulating commerce and industry.  This issue centered on whether
the Constitution permitted government to  counter the growing po-
litical and  economic power  of increasingly  large businesses
(trusts).   Secondary post-war issues included land claims, such
as and Spanish laws under Louisiana Treaty were also common (Car-
son, 1971: 384).  Other issues included questions of land, taxes,
internal improvements, industrial expansion, finances,  tariffs,
labor and contract.

The Republicans were divided on Reconstruction policy;  the Radi-
cal Republicans favored harsh  penalties and corresponding legis-
lation, and the moderates, led by President Johnson,  favoring a
more lenient policy[36].   The radicals advocated numerous poli-
cies for expanding  the rights of Blacks,   but their so-called
"Negro Policy" was cynical and politically motivated,  devised as
a means to increase Black  Republican voters to allow Republican
control of government.   Obedient Blacks would vote, influential
Southern anti-Federalist whites would not.   The election of 1866
returned a majority of Radical Republicans to Congress,  and this
group led the enactment of  post-war civil rights legislation and
Constitutional Amendments.

CIVIL RIGHTS AND THE CIVIL WAR AMENDMENTS

Following the war,  a concept of  civil rights emerged in a form
which survives to this day.    This occurred at first primarily
through congressional legislation designed explicitely to protect
individual rights, that operated on a national scale.   In 1866,
the Ku Klux Klan had been  secretly formed to preserve the "white
race" by terrorizing Blacks.  It was thus judged by Northern pol-
iticians that Constitutional amendments would be useful to create
rights for Blacks,  and legislation was enacted to protect these
newly-created rights.   The most  important piece of legislation
was entitled "Act to Protect all  Persons in the United States in
their Civil Rights (1866)," intended to protect freed slaves from
potential civil rights abuses.   The first formal attempt at en-
forcement was instituted by Executive  Document #29 (19 February,
1867) when President Johnson,  acting on an earlier resolution by
the Senate, directed the Attorney General to report possible vio-
lations of the Act.  Act.  The first case filed under this legis-
lation was on behalf of William  Fincher,  "a person of color in
the state of Georgia," who alleged  he was illegally indicted and
convicted for vagrancy in Pike  County and forcibly subjected to
involuntary chain gang labor, a condition which violated his Con-
stitutional and  statutory civil rights.   Fincher  claimed his
prosecution was intended to destroy his influence and credibility
in the community as a "colored preacher" because he was "zealous-
ly attached" to a society which  was "offensive to public senti-
ment" (Executive Document #29, 1867: 3).

A second civil rights act was passed by Congress in 1867, but was
vetoed by President Johnson.   Shortly after the ratification of
the 14th amendment (1868)  which extended Constitutional protec-
tions from the federal domain to the states, the last significant
civil rights enactment  of the reconstruction era  was passed in
1871.   This so-called "Ku Klux Klan  Act" survives today as 42
U.S.C.  Section 1983, and although it did not create rights,  it
provided civil  cause of action  enforceable in  federal courts
against any state official found  to be in violation.   Although
modified and renewed several times in the next 10 years, the rel-
evant language of the original civil rights legislation today re-
mains essentially unchanged.
In addition to legislative acts,  three amendments were added to
the Constitution.  The first was the thirteenth amendment (1865).
Its first section held that:

     Neither slavery nor involuntary servitude,  except as a
     punishment for crime whereof the  party shall have been
     duly convicted,  shall exist within the United States,
     or any place subject to their jurisdiction.

The thirteenth amendment  was significant not only  for its sub-
stance, but for the new political philosophy it reflected:   The
federal government assumed responsibility for guaranteeing liber-
ty by nationalizing the right to freedom and enforcing this right
through "appropriate legislation," a term  inserted into the Con-
stitution for the first time.    The policies of reconstruction,
however,  were necessarily lenient,  thus allowing latitude for
considerable  political autonomy  in previously  successionist
states.  This allowed the former slave-holding states opportunity
to impose restrictive laws particularly against Blacks.
The Fourteenth Amendment

Prior to the civil war, it had been settled that the federal gov-
ernment lacked the  power to apply federal Bill  of Rights stan-
dards to individual states.  The Supreme Court had earlier estab-
lished in Barron v.  Baltimore (7 Pet.  243, 1833)  that these
provisions were limited to the federal government only.   Subse-
quent attempts to expand Constitutional  protections to state ac-
tions through, for example, the "due process" clause of the Fifth
Amendment, repeatedly failed.  Failure prompted remedy, and addi-
tional legislation was required in  order to provide the federal
judiciary with  explicit powers to  enforce federal law  in the
states[37].

Fearing that  additional protections  were required  to protect
rights,  Congress passed the fourteenth amendment in 1868.   The
fourteenth amendment was the most significant of the civil rights
amendments,  for it not only  defined citizenship and prohibited
states from enacting laws  which abridged Constitutional rights,
but also extended federal authority into what had previously been
non-federal jurisdiction.  Proposed in 1866 and ratified in 1868,
its language continues to provide the  basis for in civil rights
litigation[38]:

     All persons born or naturalized  in the United States,
     and subject to the jurisdiction thereof,  are citizens
     of the United States and of the State in which they re-
     side.   No State shall make  or enforce any law which
     shall abridge the privileges  or immunities of citizens
     of the United States;  nor shall any State deprive any
     person of life, liberty, or property,  without due pro-
     cess of law;  nor deny to any person within its juris-
     diction the equal protection of laws.

The successionist states were not represented in the voting[39].
This amendment was intended to  protect newly-freed slaves in the
Southern states,  but its language was broad,  and there was no
reference to slavery or to any  specific group.   The first sen-
tence of Section I of the  Fourteenth Amendment has become known
as the "citizenship clause." It  provided not only the definition
of citizenship which justified extension of Constitutional rights
to Blacks,  but implicitly extended these rights to other ethnic
groups as well.  Some of these groups, however, would not receive
the benefits for until the  next century.   The second sentence,
the "due process" clause, remains controversial to this day.   In
essence, it extended to Bill of Rights to the state.   The "equal
protection" clause further granted to all citizens Constitutional
safeguards--in principle,  at least--against discriminatory law.
Because the language pertained to any person, and because of what
has come to be known as  the "Due Process clause," the fourteenth
amendment is considered the most  important single act in promot-
ing the federal government to the supreme protector of liberty in
state actions.   Even today it  remains debated whether this was
intended to be  a short-hand summary of the bill  of rights en-
forceable by  the federal judiciary  upon the  states (Berger,
1977).

The final amendment  of the reconstruction period  was the fif-
teenth (1870), which was intended to protect voting rights:

     The right of the citizens of  the United States to vote
     shall not be denied or abridged by the United States or
     by any State on account of race,  color,  or previous
     condition of servitude.

The issues surrounding the  Amendments and legislation reflected
issues that had  surged into the political domain  in the 1840s.
They included such problems as habeas corpus law, slavery,  fugi-
tive slaves, the "morality" of state law,  the powers of the fed-
eral government to review state statutes,  and the balance of po-
litical power between federal and state governments.  The debates
were formulated in the abstract  language of Constitutional mean-
ing and philosophy, and taken as a whole reflect two incompatible
interpretations of  the relationship between federal  and state
tone[40].   For example,  some  Southern states jailed Northern
Blacks,  particularly sailors,  because of laws excluding Blacks
from the state.  This was considered a gross violation of Consti-
tutionally protected rights by Northern politicians.  Arguing the
case in congress, Daniel Webster, a Massachusetts Senator and ar-
dent Federalist, summarized the tone in an 1850 Senate debate:

     There is a more tangible  and irritating cause of grie-
     vance at the North.  Free blacks are constanty employed
     in the vessels of the North,  generly as cooks or ste-
     wards.   When the vessel arrives,  these free colored
     men, are taken on shore, by the police or municipal au-
     thority, imprisoned, and kept in prison,  till the ves-
     sel is again ready to sail.   This is not only irratat-
     ing,  but exceedingly inconvenient and practice,  and
     seems altogether unjustifiable, and oppressive.  .  .
     The North thinks such imprisonment illegal,  and uncon-
     stitutional (Virginia Commission on Constitutional His-
     tory: 2).

A South Carolonia  Senator responded in defense of  such law and
practice by arguing that states could do as they pleased:

     The laws of Congress, enacted long ago, for the regula-
     tion of commerce and navigation,  nowhere regard a col-
     ored man as a citizen,  and have made a makred distinc-
     tion between them;  neither  the Constitution nor the
     ancient laws regarded a colored man as a citizen, with-
     in the contemplation of that term; and so far as it re-
     gards this species of persons, each State can give them
     a local status,  to which all coming within a State ju-
     risdiction must assimilate.  They are a species of per-
     sons having such rights only  as may be conferred upon
     them by State jurisdiction; they have no federal eligi-
     bility,  or federal recognition,   as citizens of the
     United States (Virgina Historical Commission, 1967: 2).

The controversy over the source of  authority by which an entire
category of persons  would be defined as  "legal subjects," and
thus entitled  to corresponding federal protections  was clearly
understood as ultimately a Constitutional question.   Nineteenth
century legislators,  like their twentieth century counterparts,
were divided on the question of  whether the Constitution was an
instrument of justice by which the  nation's citizens were to be
protected from injustice, or whether the Constitution was instead
primarily a regulatory device limited to administering activities
between the states and between private individuals and the feder-
al body.   Northern politicians clearly opted for the former in-
terpretation, and argued that it was within the federal domain to
establish protectings binding on individual states.   Typical of
the arguments is that of James  Wilson when supporting the House
version of the Civil RIghts Act of 1866:

     As I have already said,  "If the citizens of the United
     States, as such,  are entitled to possess and enjoy the
     great fundamental civil rights which it is the true of-
     fice of the Government to protect,  and to equality in
     the exemptions of  the law,  we must  of necessity be
     clothed with the power to insure to each and every cit-
     izen these things which belong  to him as a constituent
     member of  the great national family."  Whatever these
     great fundamental rights are,  we must be invested with
     power tolegislate for their protection or our Constitu-
     tion fails in  the first and most  important office of
     Government.
                                    .  . .  .   Before our
     Constitution was formed,  the great fundamental rights
     which I have mentioned, belonged toevery person who be-
     came a member of our  great national family.   No one
     surrendered a jot or a tittle  of these rights by con-
     senting to the formation of the Government.   And these
     sevesral departments of Government possess the power to
     enace, administer,  and enforce the laws "necessary and
     proper" to secure these  rights which existed anterior
     to the ordination of the Constitution.   Any other view
     of the powers of this  Government dwards it and renders
     it a failure  in its most important  office (Virginia
     Commission on Constitutional History, 1967: 164-165).

In response,  New Jersey states'  rights Democrat Andrew Rogers
summarized the position of position  of the opponents of federal
powers:

     Now, sir,  it cannot be pretended by any lawyer in this
     House, whatever his political opinions may be, who will
     base his  integrity upon his  professional experience,
     that there  is any authority  in the Congress  of the
     United States to enter the domain of a State and inter-
     fere with its internal police, statutes,  and domestic
     regulations (Virginia Commission on Constitutional His-
     tory, 1967: 165).

Representative Rogers' position typified  the combination of ra-
cial attitudes and judicial ideology:

     Now, sir, if you pass this bill you will allow the neg-
     roes of this country to compete  for the high office of
     President of the United States.    Because if they are
     citizens at all,  they come within the meaning and let-
     ter of the Constitution of the United States, which al-
     lows all natural born citizens to become candidates for
     the Presidency,  and to exercise the duties of that of-
     fice if elected.  

     [Unidentified House member]: Are you afraid of that?

     Mr.  Rodgers: I am afraid of degrading this Government.
     I am afraid of danger to constitutional liberty.   I am
     alarmed at the stupendous  strides which this Congress
     is trying toinitiate.   And I  appeal in behalf of my
     country,  in behalf of those that are to come after us,
     of generatins yet unborn,  as well as those now living,
     that convservative men on the  other side should rally
     to the  standard of sovereign and  independent States,
     and blot out this idea which is inculcutaing itself he-
     re,  that all the powers of  the States must be taken
     away and the power of the Czar  of Russia or of the Em-
     peror of France must be  lodged in the Federal Govern-
     ment.
     Sir,  where is the civilized country on the face of the
     earth that gives tothe negro the right tohold the high-
     est office within the gift of the sovereign people,  or
     any other office? (Virginia Commission on Constitution-
     al History, 1967: 167).

Despite bitter debates,  Civil War  civil rights legislation and
amendments passed.   The debates clearly  indicate that the Con-
gressional lawmakers  understood full-well the  implications of
their actions.   They judged that  they were developing laws ex-
plicitely within the  framework of the Constitution  and Bill of
Rights, and that their actions were consistent with and a logical
extension of the intents of Constitutional writers.   The current
view of conservatives that the  Fourteenth Amendment was not in-
tended to apply to states (Meese, 1985) is belied by the post-War
debates.   John Bingham, the Ohio Representative who drafted the
first section of the Fourteenth  Amendment,  was unequivocal in
stating his intention.  In an 1871 speech before the House on re-
enactment of the Civil Rights Act,   he explained his purpose in
drafting the earlier legislation,  and argued that no state ever
had the right to defeat the purpose of government.  In describing
how he had attepted to imitate the framers of the Constitution in
language and intent, he read the first eight articles of the Bill
of Rights in order to specify  the liberties belonging to all na-
tional citizens.   He then reaffirmed his intention of expanding
these rights to the states:

     These eight articles  I have shown never  were limita-
     tions upon the power of the  States,  until made so by
     the fourteenth amendment.  The words of that amendment,
     "no State shall  make or enforce any  law which shall
     abridge the privileges or immunities of citizens of the
     United States," are an  express prohibition upon every
     State of the Union,  which may be enforced under exist-
     ing laws of Congress,  and  such other laws for their
     better enforcement as Congress may make.
                                   . . .
     Sir,  before the ratification of the fourteenth amend-
     ment,  the State could deny to any citizen the right of
     trial byjury,  and it was done.   Before tht the State
     could abridge the freedom of the press,  and it was so
     done in half of the States of the Union.  Before that a
     State, as in the case of the State of Illinois,  could
     make it a crime punishable by fine and imprisonment for
     any citizen within her limits,  in obedience to the in-
     jucntin of our divine Master,  to help a slave who was
     ready to perish;  togive him shelter, or break with him
     his crust of bread.  The vlidity of that State restric-
     tion uponi the  rights of conscience and  the duty of
     life was affirmed,  to the shame and disgrace of Ameri-
     ca, in the Supreme Court of the United States; but nev-
     ertheless affirmed in obedience  to the requirements of
     the Constitution.
     Under the Constitution as it is, not as it was,  and by
     force of the fourteenth amendment,  no State hereafter
     can imitate the bad example  of Illinois,  to which I
     have referred,  nor can any State ever repeat the exam-
     ple of Georgia and send men to the penitentiary, as did
     that State,  for teacing the Indian to read the lessons
     of the New Testament,  to know that new evangel,  "The
     pure in heart shall see God."

     Mr.  Speaker, this House may safely follow the example
     of the makers  of the Constitution and  the builder of
     the Republic,   by passing laws for  enforcing allthe
     privileges and  immunities of citizens of  the United
     States,  as guarantied by the amended Constitution and
     expressly enumerated in the Constitutin.   Do gentlemen
     say that by  so legislating we would  strike down the
     rights of the State?  God forbid.   I believe our dual
     system of  government essential to our  national exis-
     tence.
                                   . . .
     The people of  the United States are  entitled to have
     their rights guarantied to them  by the Constitution of
     the United States, protected by national law.   I enter
     upon no new construction.

The role of governmentis to protect the rights and interests of indi-
vidual citizens,  and argument that duplicated the philosophy of
the writers of 1789.

The passage of the civil rights acts was, then,  not the outcome
of hasty legislation and uninformed  debate.   Nor did it simply
reflect a power minority imposing its will on the majority;  the
legislation was passed by Congress, and the Amendments were rati-
fied by the requisite two-thirds  of the states.   Lawmakers and
citizens alike were aware that they  were not creating new rights
nor usurping power  from the states for  the federal government.
They fully believed,  and cited appropriate law and debates from
the original Constitutional Convention  to substantiate their po-
sition,  that the Constitution was  intended to protect all the
liberties it specified.

These amendments and legislation were sound in theory,  however,
but ineffective in practice.   Any  immediate gains of the civil
rights amendments and legislation were short-lived.  Although the
legislation resulted in a set  of legal principles that expanded
rights for previoulsy excluded groups,  there was no explicit ex-
tra-legal machinery created to protect the rights,  since it was
assumed that the judicial enforcement  of legislation and amend-
ments would suffice for the task.   This assumption was mistaken.
The state courts thus continued  to affirm regional social prac-
tices,  and the federal district  courts were hesitant to review
state practices;  even when they did, they tended to ignore bla-
tant state violations of civil rights.

It would be too simplistic, however,  to view the post-Civil War
federal judiciary as  simply affirming the states'  rights doc-
trine.   Federal decisions in fact reflected an attempt to main-
tain a delicate balance of power  between states and the federal
judiciary at a time when the  need to re-establish political har-
mony was crucial.   The post-war federal judiciary was committed
to maintaining and extending  national power while simultaneously
allowing especially the Southern states  to retain a semblance of
autonomy following the  divisive conflicts created by  the civil
war.

In a sense,  the post-war judiciary  did indeed reaffirm the in-
tents of the nation's founders,   but not by advocating states'
rights.  Congress began implement in practice George Washington's
tenet that the Constitution created "one people." The process be-
gan slowly, almost imperceptibly;  the Nation was establishing a
fundamental law for all subjects.  The protections in the Consti-
tution and amendments,  intended by the framers to guarantee lib-
erty, was--with the help of legislation and the Fourteenth Amend-
ment--gradually extended to fulfill the original intents:  It was
forming a more perfect Union, establishing justice, promoting the
general welfare, and securing the blessing of liberty to a larger
body of the population.

Judges also recognized that the  Constitution was a living docu-
ment that could be used as a political tool to balance a diversi-
ty of interests, maintain social and political harmony,  facili-
tate growth of a rapidly growing and changing economy, and at the
same time preserve federalism by strengthening its right to adju-
dicate state matters.   Judges also recognized that the Constitu-
tion could be used as a passive instrument by denying of certiar-
ori to appellants or through  decisions that would preserve state
practices while retaining  the judicary's right to  review such
practices.   This had the paradoxical  outcome of preserving re-
pressive laws while expanding judicial authority,  implying that
such laws could be reinterpreted at  a later date.   As a conse-
quence, the number of petitions brought before the court by civil
rights advocates, economic interests, and others, rose.  But this
increase of federal activity,  the rise of corporate business and
the expansion  of federal power thorugh  judicial interpretation
placed a burden on  the federal court which it was  not able to
handle (Richardson and Vines, 1970: 28).  By the end of the 1870s
and the re-emergence of the successionist states to grace, little
attention was given to Constitutional  rights,  and by the next
Constitutional period,  the gains obtained immediately after the
war were considerably diminished by  Southern Black Codes,  "Jim
Crow" laws and federal quiescence in  acting on civil rights is-
sues[41].

The decline of the Republican party  also reduced the impetus for
enforcement of previous Republican legislation:

     In the election of 1874, the Republican Party lost con-
     trol of the House and was  no longer in the position to
     continue the enactment  of reconstruction legislation.
     In 1876,  the Republican Party  continued to lose con-
     gressinal seats, and the election of that year--by com-
     mon understanding--is considered the  termantin of the
     reconstruction period (Virginia Commission on Constitu-
     tional Government, 1967: Preface).

Federal power necessitated by the war  was in decline,  and both
courts and Congress moved toward a new federal-state equilibrium.
This balance was brought about  by reinterpretation of law,  as
typified in the Civil Rights Cases (109 U.S. 3, 1883).   In these
cases the Court adopted a  narrow interpretation of civil rights
legislation and amendments,  and effectively struck down the pub-
lic accommodations section of the Civil Rights Act of 1875.

Other post-Reconstruction decisions  upheld disciminatory capital
punishment based on race, the exclusion of Blacks from juries and
restrictive voting practices.   The Civil Rights Cases passed the
political power from the federal  government back to the states,
and especially in the south an  apartheid system became a funda-
mental part of the social structure.   By 1890, most Southern and
some Northern states had restrictive laws against Blacks, and the
civil rights legislation of the  post-war decade had become inop-
erative.   In civil rights  matters,  federal courts generally
avoided confrontation with, or repeal of, Southern state laws and
decisions, holding to the principle that all powers not expressly
given to the federal government remained with the states, regard-
less of the perceived Constitutional discrepancies (Bloch,  1958:
49).  A spate of decisions held that racial discrimination in em-
ployment, exclusion on juries,  disparate sentencing in criminal
offenses and in public accommodations were either not necessarily
unconstitutional or not  within the domain of  federal jurisdic-
tion.

The Slaughter-House Cases (16 Wallace 36, 1872), provide the most
dramatic examples of this process.  The court upheld the right of
businesses to form  monopolies by aplying the  Fourteenth Amend-
ment's Due Process Clause.   The Slaughter-House Cases hold a cu-
rious place in U.S.  Constitutional history.   On one hand, they
provided a  narrow interpretation of the  Fourtheenth Amendment
which functioned to  weaken much of the  Reconstruction legisla-
tion.   It limited the "privileges and immunities" clause of Sec-
tion I, and argued:

     We doubt very  much whether any action of  a State not
     directed by way of  discrimination against the negroes
     as a class, or on account of their race,  will ever be
     held to come  within the purview of  this [fourteenth
     amendment] provision.  It is so clearly a provision for
     that race and that emergency,  that a strong case would
     be necessary for its application to any other.

One the other  hand,  it had three  long-range consequences for
subsequent judicial theory.  First, despite the apparently narrow
interpretation,  the decision effectively created a new category
of litigants  to whom the concept  of due process  would apply.
This implicitely re-affirmed court power  to bring new legal sub-
jects under Constitutional protection.   Second, the decision ex-
panded the legal  status of business by granting  them the same
status as "persons." The "citizenship" clause of Section I of the
Fourteenth Amendment provided that "all  persons born or natural-
ized in the United States, and subject to the jurisdiction there-
of,  are citizens." By  extending Constitutional protections to
corporate entities, the definition of citizenship was explicitely
and dramatically expanded.  Hence, the inclusion of new groups to
be protected by the Constitution  is hardly a recent development
of "activist judges."

In the late nineteenth century,  businesses played much the same
role in expanding  Constitutional legal theory as  civil rights
groups have done since the 1960s, and with the same result:   The
Law of the Land was brought in  line with the times,  and legal
models were created by which to resolve through legal means those
social problems which  others forms of dispute  resolution could
not.   Finally, the Slaughter-House Cases established one source
of federal power  to control private conduct  (Barret and Cohen,
1985: 1016).   This conservative decision by a conservative court
was intended to limit federal  intervention into the social sec-
tor, even while expanding it in the economic realm.  It had, how-
ever,  the ironic outcome of providing precedent for judicial in-
tervention into a broad range  of activities which had previously
been avoided.

The narrow interpretation of due process and equal protection in-
tended by the Slaughter-House Cases gradually eroded.  The limit-
ed application of  equal protection to non-Black  groups estab-
lished by this  decision was altered.   In  Strauder v.   West
Virginia ( 100 U.S.  303, 306, 307), the Court ruled that a state
statute limiting juries to whites was unconstitutional.
By 1885,  the Court had expanded its interpretation of the Four-
teenth Amendment, and as Barrett and Cohen, 1985:  662) have ar-
gued, by the mid-1880s, Chinese--and eventualy other groups--were
considered to be groups entitled to its protection.   Despite re-
sistance to nationalization  of the Fourteenth Amendment  in the
two decades following the Civil War,  the mid-1890s,  the courts
had reinterpreted the Due Process Clause to guarantee rights pre-
viously rejected under  the Privileges and Immunities  Clause in
the Slaughter House Cases (Cortner, 1981:  23).   Federal courts
may have been cautious in  their interpretion of the Constitution
and federal legislation in civil rights cases,  but they were far
less so in other areas.

Faced with the aftermath of social and economic disruption,  Con-
gress focused both time and  resources primarily on returning the
country to stability  and growth.   The post-civil  war era had
stimulated both the Northern and Southern economy, and industrial
expansion in the North led to  the influx of Northern capital and
industrial development in the South.

Territorial expansion led to rapid  and dramatic growth of rail-
roads and corresponding manufacturing.   Such industries as coal,
steel, mining and textiles flourished.   After 1866,  the four-
teenth Amendment to the Constitution  proved to be an invaluable
aid to these new industries.  Business not only needed the assis-
tance of politicians, but also the help of the courts:  Interpre-
tation of the law was as important as the law itself.   (Nye and
Morpurgo, 1965: 584).  Railroads, coal, oil and mining companies,
as well as trusts benefited from litigation.  Prior to civil war,
businesses were small, local, and usually not incorporated.  Eco-
nomic necessity  and technological advances  transformed society
from one based  on labor intensive to  capital intensive produc-
tion.   This required new laws and appropriate judicial interpre-
tation to  assure smooth commercial growth.    Northern victory
meant that Northern industrial and business interests, represent-
ed by  Republicans previously held in  check by a  coalition of
Southern and northwestern interests,  were free to run the nation
as they wished.  Federal litigation helped change this when busi-
nesses began challenging  state laws perceived to  inhibit com-
merce.   The power of the economic structure on court issues and
decisions continued through the close of the century.
In 1886, it was "discovered" that corporations were constitution-
al subjects,  and thus entitled to protection under the "due pro-
cess of law" clauses (Santa  Clara County v.   Southern Pacific
Railway, 118 U.S.  394, 1886), when Chief Justice Waite declared
that 14th amendment applies to "corporations" as well as persons.
This represented a dramatic shift in  the concept of legal rights
in that non-persons  now possessed rights which  had previously
been granted only  to persons.   The Due Process  Clause of the
fourteenth, cited by conservatives as a threat to states' rights,
amendment became a  convenient tool for businesses  to establish
and protect their rights when it served their interests.
Prior to the civil war,  on only two occasions did the court at-
tempt to  define the scope of  the "due process" phrase  of the
fifth amendment (Barrett and Cohen, 1985: 481).   After the war,
changing concepts of rights, of due process,  and above all,  a
changing society  that challenged previous concepts  created new
social--and by extension  legal--conflicts for the Court  to re-
solve.   

The first and most dramatic litigation was the "slaugh-
ter-house" cases (16 Wall. 36, 1872), in which the state of Loui-
sana chartered a  corporation and allowed it  exclusive right to
conduct business in New Orleans and required all competing compa-
nies to close.   The statutes were  challenged on the basis that
they elevated the  privileges of a powerful monopoly  at the ex-
pense of the polity in general.   The plaintiffs claimed that the
statutes violated the thirteenth  amendment (by creating involun-
tary servitude),  and the fourteenth amendment (through depriva-
tion of property without due  process,  abridging privileges and
immunities of U.S. citizens, and denying plaintiffs equal protec-
tion of the law).   Despite an eloquent dissent by Justice Field,
the court upheld the Constitutionaity of the statutes.
In siding with monopolistic enterprise,  the court suggested that
there were areas in which the  judiciary should not interfer lest
it upset the balance between state and federal power.   But this
was not so much  a states' rights issue as the  reflection of a
broader trend which transcended individual states.   In an era of
emerging monopolies,  which broke down political and ideological
barriers between states, this decision supported a trend that fa-
cilitated the creation of a  national economy along monopolistic
lines, and thus contributed to the growing need for a strong cen-
tral authority to maintain  the production/distribution cycle of
commerce.

The Supreme Court further established  itself as the protector of
national norms in declaring bigamy  illegal in Utah (Reynolds v.
U.S., 98 U.S.  145, 1878).   The court ruled that the state laws
banning the practice did not  consistute violation of freedom of
religion.   Writing for the majority,  chief justice Morrison R.
Waite argued that although religious freedom should prevail, leg-
islation in the states could enact  laws prescribing a rules for
preservation of fundamental institutions such as marriage or fam-
ily relations.  While the decision may seem on its surface to up-
hold the doctrine of states'  rights,  it actually elevated the
federal judiciary as ultimate judge of national norms.
The transition between  the first and second  Republican periods
was marked by the Plessy v.   Ferguson decision (163 U.S.  537,
1896).   At issue was the constitutionality of racial discrimina-
tion,  and in upholding the practice,  the decision guided state
policies for the next 60 years.  At issue was the constitutional-
ity of an 1890 Louisiana act providing separate railway carriages
for whites and blacks.   The  court ruled that racial separation
did not necessarily stamp "the colored  race with a badge of in-
feriority," and created the "separate but equal" doctrine to jus-
tify its position.   In writing  the majority opinion,  Justice
Brown argued that races cannot be "put  on the same plane" by ju-
dicial fiat:

     Legislation is powerless to eradicate racial instincts,
     or to abolish distinctions  based upon physical differ-
     ences,  and the attempt to do so can only result in ac-
     centuating the difficulties of  the present situation.
     If the  civil and political  rights of both  races be
     equal,  one cannot be inferior to the other civilly or
     politically.

The court did not rule that  it lacked jurisdiction in such mat-
ters,  for it explicitely accepted  that right without modifica-

tion.  It also created a specific doctrine, "separate but equal,"
to be used as a standard by which to judge future cases.
The First Republican period has left  an important legacy to con-
temporary civil rights litigation.   First, it provided the basis
for intervention by the federal  judiciary into private conduct.
The scope of this intervention was not clearly defined,  however,
and subsequent decisions provided the  judicial logic for expan-
sion.   Second, the Fourteenth Amendment was used to bring state
legislation and judicial practice in line with federal norms, and
thus functioned to bring a  certain homogeneity to national judi-
cial activity.   Third, several clauses in the Fourteenth Amend-
ment were reinterpreted to protect the rights of a variety of so-
cial  subjects that  had previously  been unprotected.    The
"citzenship," "due process," and "equal protection" clauses espe-
cially were expanded to extend rights to corporations, minorities
and others.  It should be re-emphasized that the decisions, espe-
cially those of civil rights,  were often unfavorable to minori-
ties.   Nonetheless, the legal theories and judicial logy was fo-
rulated  by  which  the federal  judiciary  later  justified
intervention on the basis of the Fourteenth Amendment.  This pro-
vided the fundamental basis  for subsequent intervention,  which
some call "judicial activism." In  the next period,  the courts
were relatively quiet,  protecting their power and consolidating
the social and economic decisions to conform to the emergent cor-
porate-capital phase of history.

THE SECOND REPUBLICAN PERIOD (1896-1932)

In the 36 years since the First Republican period,  12 new states
were added to the union,  and  the population more than doubled
from the 1860 total of 31,500,000.   By 1896 the nation was still
rural,  but the urban poplulation was increasing rapidly.   The
country was in the middle of its industrial revolution--200 years
after that of England--and large  corporations were becoming more
powerful.  The Standard Oil Company had formed the first trust in
1882, and within the next few years large trusts were controlling
considerable resources and power.  By the 1890s, liberal thinkers
judged government controlled by a privileged  few who ran it for
the benefit of businesses, banks railroads and large industry.
In some respects, early twentieth century economic forces spurred
"judicial activism" in  much the same way as  civil rights pres-
sures did 60 years later.   The  growth of national industry and
the need for a corresponding set of laws and regulations demanded
consistent legal policies and practices, and the courts were used
to challenge those laws which stifled economic freedom.   Through
Constitutional interpretation and enforcement,  the federal judi-
cary consistently voided state laws that  stifled the growth of a
national economy,  enforced the right of contract as a Constitu-
tional right,  and effectively shifted  power from the states to
the federal government.   Thus began the Progressive era in which
the federal government  took an increasingly prominent  role in
maintaining the stability and harmony  of the social and economic
order.   William McKinley began the first of his two terms,  and
campaigned as an advocate of big business.   During this era, the
government took an aggressive role,  largely at the prompting of
big business and  such organizations as National  Association of
Manufacturers and National Civil Federation, to regulate commerce
and industry.

The Sherman Anti-Trust Act, passed in 1890,  prohibited in vague
language all cominations of restraint in trade.   It was largely
ineffective in its first 15 years, but after the turn of the cen-
tury legal issues raised by the  act were beginning to reach fed-
eral courts.   Following the mood of the time, the Supreme Court
upheld the act,  further strengthening the legitimacy of judicial
intervention in private affairs.    Other signiicant legislation
included the Federal  Reserve Act and the  Federal Trade Commis-
sion.  The former brought the nation's financial institutions un-
der regulative control and thus insured stability in the economic
environment The latter act,  along with the Food and Drug Act and
Meat Inspection act, was passd at the behest of large firms with-
in each industry in order to  control smaller competitors and at-
tain product credibility (Greenberg, 1974:  94-95).   For excel-
lent discussions of the political[42]

By the 1920s,  the ideology  of "equal opportunity" and "liberty
for all" was being shattered by economic inequality,  repression
of socialist thought, and a political system that seemed indiffe-
rent to the needs of a growing underclass.  Any hope of re-estab-
lishing social harmony consistent with  the principles of laissez
faire economic principles and  a "hands-off" judicial philosophy
was shattered by the Great  Depression.   The social conditions
spawned by a changing society in chaos, and the emerging struggle
for for rights afterwards,  led to perhaps the most extensive le-
gal changes in the nation's history.

                   6. LAW IN THE "MODERN ERA"

The new deal brought with it profound changes between the federal
government and the states,  and this relationship led to the im-
portance of the U.S.  Supreme Court  in reviewing both state and
federal statutes and procedures.

THE NEW DEAL ERA (1932-1968)

If the second Republican period  was one of mediating inter-class
conflicts in the realm of commerce and industry, the New Deal era
was one of  mediating social conflicts created by  the Great De-
pression.   The population continued to grow,  partly because of
the influx of foreign labor,  and the economic structure was in-
creasingly unable to  accommodate a growing underclass  that was
unable to find secure employment and  that was also excluded from
fundamental liberties such as free speech and assembly,  and gen-
erally living on the periphery of an affluence shared by a minor-
ity of the population.   When the  courts ruled on the constitu-
tionality of laws, they consistently affirmed federal legislation
controlling economic enterprise.   Civil  rights issues were not
common, but corporate rights were nonetheless extended,  and in-
cluded such issues as tort, contract, interstate trade and intra-
corporate regulation.   In fact, Miller (1982:  165) has argued
that from 1890-1937,  justices read freedom of contract into the
Constitution's Due Process Clauses, This dramatically altered the
concept of legal rights by  creating new categories of protected
persons.

In short,  this was the era of Big Business and emerging monopoly
capitalism,  and the courts spend virtually no time mulling over
issues of individual rights or liberty.  Legislators, the judici-
ary, and other social institutions were inattentive to the chang-
ing social conditions, and the economic collapse of 1828 provided
the opportunity for change.   The  ideal of equality during the
Second Republican era had been dept alive by the ideal of occupa-
tional mobility (Aronowitz, 1973: 154).   It became increasingly
clear that the ideology of opportunity  was belied by the reality
of class,  exploitation,  and general insensitivity by state and
federal government to the problems  of survival for an increasing
portion of the population.  National unemployment reached 15 mil-
lion on the day of  Roosevelt's inauguration (Greenberg,  1974:
105),  and it became clear that the federal system,  to preserve
the capitalist structure, would be required to attack social ills
as aggressively as it had tackled  the economic ills in the Pro-
gressive Era.  The federal machinery that had been used to create
economic regulation in  the business environment was  now turned
upon social regulation.   Thus began the new cycle of federal in-
tervention in the New Deal.

The marriage between big business  and government was transformed
with the election of President Roosevelt and the "New Deal." This
period was characterized by the  emergence of the "welfare state"
in which the  federal government began to  assume responsibility
for maintaining social harmony Using  a variety of political and
legislative strategems,  President Roosevelt  took an aggressive
role in creating national recovery programs.  His social programs
especially have  been criticized as "creeping  socialism." These
social programs in fact staved off dramatic social change by ame-
lioriting the harsher conditions of the depression.  Public works
provided unemployed workers with at least a minimal income;  wel-
fare programs helped others meet daily requirements for survival.
To meet the constitutional challenges  to his recovery policies,
Roosevelt recognized that a  sympathetic judiciary was necessary,
and this led to  his attempt in 1937 to pack  the Supreme Court
with co-ideologues who would presumably rule in his favor on con-
troversial cases.   His bill to increase the court to 15 members,
thus allowing  him to appoint  up to six  additional justices,
failed.  Nonetheless, he was ultimately successful in court-pack-
ing, and when he died in 1945,  the only non-Roosevelt appointee
was Justice Roberts,  and he was soon replaced by President Tru-
man.

In the middle of Roosevelt's presidency, civil rights legislation
re-emerged.  The most important included the Fair Labor Standards
Act (1938)  The World War II Federal Employment Practices Commit-
tee (1941, 1943),  and the Wartime Voting Act (1941)  which was
later amended and strengthened in  the Federal Voting Assistance
Act (1955).   In addition, much of the New Deal legislation con-
tained clauses establishing the  principle of non-discrimination
and equality of opportunity.    Well-intended as this legisation
was, however, it was largely symbolic.   There were no provisions
for defining discrimination and no machinery for sanctioning vio-
lations (BNA, 1964: 10).

By the late 1930s,  federal support of business had reversed and
was replaced by social welfare concerns.   The post-1937 Supreme
Court economic decisions left intact  most state and federal laws
regulating economic life,  and the Supreme Court consistently de-
nied certiorari  in cases challenging the  constitutionality of
such legislation (Goldman and Jahnige, 1985: 187).   Despite the
general support of social legislation, federal courts also upheld
the constitutionality of one of the  most blatant examples of ra-
cism in our nation's history.  In the months following the decla-
ration of war with Japan, a series of executive orders, state and
federal acts were passed directed against persons of Japenese de-
scent,  many of whom were second or third generation U.S.  citi-
zens.  Using descent as the target category, these acts variously
established curfews,   restricted travel and reduced  the first
amendment rights of Japanese.    The most controversial federal
policy required relocation of large entire populations of Pacific
coast Japanese to detention camps,  and included confiscation of
property and possessions as a practical,  if not explicitely au-
thorized, outcome.   Although persons of German descent were not
so-treated,  in a series of cases in 1943 and 1944,  the Supreme
Court upheld the policies,  arguing that persons of Japanese de-
scent presented a special danger to  the community in the context
of the war (Hirabayashi v. U.S., 320 U.S. 81, 1943).  These deci-
sions were, however,  overruled in Following Roosevelt's death in
1945, President Truman generally continued New Deal policy.   Al-
though not fully sharing the  social philosophy of his predeces-
sor,  Truman nonetheless was committed to continuing the general
thrust of Roosevelt's programs,  even if not with the same enthu-
siasm.

Although the Roosevelt  years produced no single  dramatic civil
rights decisions,  it remains a significant period in the Consti-
tutional history of civil rights for several reasons.  First, and
most important,  it established an  operative ideology of social
justice--albeit in  rudimentary form--by creating  the rationale
for protection of  "the little guy." This was  done through New
Deal legislation, re-emergence of civil rights legislation,  and
above all,  through translating social issues of poverty and pub-
lic welfare to national policy.   Second, the federal judiciary,
through narrow but explicit decisions,   slowly chipped away at
laws that repressed individual freedom.   The NAACP was particu-
larly active,  but  other groups also sought  to redress social
grievances through litigation.   Finally,  the Supreme Court re-
mained a Roosevelt court into the 1950s,  thus providing a block
of civil rights supporters that formed the backbone of the Warren
court in the 1950s and beyond.   The election of President Eisen-
hower has been considered by many  to represent a backlash to New
Deal policies of his predecessors.   This is only partially true,
however, since Roosevelt's policies remained intact and continued
to provide the model for federal policy for the next 15 years.
President Eisenhower believed he could  reverse the Court's phi-
losophy when he appointed Earl Warren,  a political conservative
and judicial moderate, as the Court's Chief Justice in 1953.   He
was wrong.

Driving along the nation's highways in the 1950s and 1960s,  one
would see sporadically-placed billboards with  a three word mes-
sage:   "IMPEACH EARL WARREN!" In Michigan, and perhaps in other
states as well,  these signs were sponsored by John Birch Society
sypmathizers.  The sponsors, with reasoning that presaged conser-
vative critics of the 1980s, argued that the Warren Court was vi-
olating the Constitution and moving  the country toward socialism
with its radical and unfounded interpretation  of the law and in-
tervention into the lives of "the people."

The Warren Court consolidated through  judicial means the social
reforms enacted by New Dealers.    Almost immediately,  the new
Chief Justice established  himself and his court  as an advocate
for social change.  The first landmark decision, Brown v.  Board
of Education (347 U.S. 483, 1954) overturned Plessey v. Ferguson,
and has been  called the "second reconstruction"  because of its
profound impact on civil rights  and dramatic resurrection of the
rights contained in the Fourteenth Amendment.   Brown was not the
first case to succesfully chenge the Plessy decision,  but it was
the most dramatic and comprehensive.   It consolidated the previ-
ous decisions by  making explicit the legal  theories underlying
Constitutional guarantees.   Legal attacks on school segregation
began in the 1930s, led by Black lawyers.  In consistently ruling
for the plaintiffs,  the Supreme Court slowly chipped away at the
Plessy decision,  but it avoided  direct confrontation with that
decision until Brown.

The Brown suit challenged the  "separate but equal" doctrine es-
tablished in  the Plessy decision  and was brought  against the
school districts of several states.   The plaintiffs argued that
racial segregation in public schools  denied children equal pro-
tection under the fourteenth amendment  by denying them access to
White schools which were considered superior.   Although the case
was originally argued in 1952,  reargument was heard in 1954 be-
cause a number  of unanswered questions remained  concerning the
applicability of the fourteenth  amendment to the circumstances.
Writing for the majority, Chief Justice Warren wrote:

     Does segregation of children  in public schools solely
     on the basis of race,  even though the physical facili-
     ties and other "tangible" factors may be equal, deprive
     the children of the minority group of equal educational
     opportunities?  We believe that it does.

The Brown decision overturned Plessy, and held that using race as
a criteria denied  due process under the  fourteenth amendment.
More significantly, the decision explicitely ordered remedial ac-
tion and established the federal  government as the proper agent
for carrying out the order.

The civil rights movement began in the 1950s,  and by the end of
Eisenhower's second term had become  a cause celebre for Blacks,
white liberals and  especially for politicians sensitive  to the
political advantages the support of  this new constituency could
convey.   The election of John F.  Kennedy in 1962 represented a
re-affirmation of the New Deal  and government involvement in me-
diating social and political problems, and rejection of conserva-
tive "hands-off" states' rights philosophy.   Kennedy's New Fron-
tier was in  effect a series of policies aimed  at garnering the
support of groups previously excluded from political power.   In
developing programs to help minorities and the poor, Kennedy pro-
vided the structure and ideology for of the civil rights movement
for the next decade.

The Kennedy era did not represent  a reversal of the policies of
previous decades;  it was in fact a continuation of a trend that
had waxed and waned since the 1930s.  Since the 1930s, minorities
had persistently litigated fourteenth amdendment issues.   Blacks
continued their  assault on racial separatism,   especially in
schools and accommodations;  Hispanics  from the southwest chal-
lenged restrictive  laws barring them  from full  enjoyment of
rights; Asians litigated against relocation and immigration;  and
new groups (handicapped, mentally impaired, juveniles) challenged
state laws that were alleged to  reduce their rights.   Not all
cases were equally successful, and no successful case was partic-
ularly dramatic.   Many cases were lost, the Supreme Court denied
certiorari to many others, and even when a decision was favorable
to the plaintiff, it tended to be narrow in scope.   Nonetheless,
the legal trends had begun under the  New Deal as the courts be-
came recognized as a legitimate and occasionally useful avenue to
redress perceived wrongs on Constitution grounds.

During the  eight years of the  Kennedy/Johnson administrations,
broad-reaching legislation implied by Brown  was enacted to pro-
tect civil liberties.   The most notable was the Civil Rights Act
of 1964.   Unlike similarly  intended legislation of Roosevelt's
Administration,  this Act was  far-reaching.   It in principle
banned discrimination in numerous  areas,  including employment,
voting and public accommodations, on the basis of race,  ethnici-
ty, religion or sex.  After three months of heated and often hos-
tile debate, the law was implemented.

Following the 1964 Act,  several  civil rights acts were passed.
Among the most significant include The Housing Act of 1968,  sev-
eral acts  prohibiting discrimination in  federally-funded pro-
grams,  a new Voting Rights Act  (1965),  and the Indian Civil
Rights Act (1968)[43].  It also provided the means of enforcement
by creating the Equal Employment Opportunity Commission empowered
with a variety of powers  to redress violations.   In addition,
state laws restricting Bill of Rights protections to state defen-
dants were being chipped away.  For example, 25 states had enact-
ed laws similar to the federal Civil Rights Act by 1964, although
these were enforced unequally among the states.
The process of expanding civil rights had begun in the 1930s, but
escalated dramatically in the 1960s.

Describing the expansion of protected  rights risks the danger of
implying that such expansion occurs in a smooth,  linear manner.
But legal change rarely occurs  without corresponding social con-
flicts.   When the first civil rights revolution occurred in the
1860s, U.S. society was relatively segmented.   There was no na-
tional media to immediately make  visible struggles for rights or
to announce federal policy  and decisions.   Geographic mobility
was limited,  and groups supporting or opposing issues could not
quickly descend upon a city  or government agency to demonstrate
on behalf of their cause.   There was no history of civil disobe-
dience or social  activism to provide models  or strategies for
systematic activist involvement.   This had changed by the second
civil rights revolution of the mid-twentieth century.  News media
provided immediate information,  transportation allowed mobiliza-
tion of issue-oriented sympathizers,  and there had emerged a va-
riety of strategies for social protest.   The law became a focal
point around which social activists mobilized.

When Rosa Parks refused to give up her seat on a Montgomery, Ala-
bama,  bus in 1955,  she provided the symbol around which civil
rights activists mobilized.   Opponents of racial segregation re-
sponded as early as 1956,  when massive protests against the Su-
preme Court ruling to desegregate schools was organized by South-
ern Congressional representatives.   The following year, Arkansas
Governor Orval Faubus  called out the national  guard to prevent
nine  black children  from entering  an all-white  highschool.
George Wallace successfully campaigned for governor of Alabama on
an explicity racist platform, Georgia Governor Lester Maddox Mad-
dox stood at the door and 3,000 federal troops were called out to
put down riots at the University  of Mississippi when James Mere-
dith became the first black ever to enroll in the school.   Mere-
dith was later shot  to death in an ambush for  his civil rights
involvement.  Viola Liuzzo, a white civil rights worker, was mur-
dered returning from a demonstration  in a crime that ultimately
implicated the FBI[44].  Three civil rights workers were murdered
in Mississippi in a police conspiracy in 1963 (see U.S. v. Price,
383 U.S.  787, 1966),  and Martin Luther King was murdered while
standing outside his Memphis motel in 1968.   In addition, state
and federal law enforcement  agencies,  along with conservative
"monitoring" organizations conducted systematic surveillance, en-
gaged in disruptive activity,  and responded with punitive meas-
ures to  civil rights  activists engaged  in legal  activities
(Church Committee, 197*; Thomas, 1981).

Changing technology of the post-World  War two years required re-
assessment of Constitutional protections  against invasion unrea-
sonable search and seizure, and self-incrimination.  Sophisticat-
ed  surveillance devices,   for example,   have enabled  law
enforcement agents to listen to or  view behaviors in ways never
imagined by the writers of the Constitution.   The Supreme Court
directly confronted technological abuses in Katz v. United States

(389 U.S. 347, 1967), when it reversed a 40 year old decision and
precluded the use of evidence  obtained from illicit wiretapping.
Social norms and  values transformed radically in  the New Deal
years, and attacks on local restrictions on literature and speech
expanded the freedom of communication.  The anti-communist hyste-
ria of the post-war years resulted in challenges against suppres-
sion of speech and assembly.   Transition from corporate capital-
ism  to monopoly  capitalism with  an international  character
demanded new interpretions of the legal rights and status of cor-
porations, of corporate law, and of tax law.   A proliferation of
federal agencies churned out laws,   policies and regulations to
monitor and administer steering strategies  and thus prevent na-
tional chaos.   Typical of landmark civil liberties decisions are
those that addressed criminal procedures and the liberties of su-
spects.  These included especially Mapp v.  Ohio (367 U.S.  643,
1961),  which expanded protection  against illegal searches and/
provided the logic  for the current "exclusionary  rule" against
use of illegally obtained evidence in criminal trials;  Escobedo
v. Illinois (378 U.S.  478, 1964), which/ protected the rights of
suspects during interogation; and especially Miranda v.  Arizona
(384 U.S.   436,  1966),  which held that suspects must be read
their rights  when an investigation/  moves to  the accusatory
stage,  gave the Warren Court the undeserved reputation of judi-
cial permissiveness and excessive activism.

During this period this most  important prisoner petition to that
time, Gideon v.  Wainwright (372 U.S.  335, 1963) was decided.
Gideon,  the plaintiff,  was serving  a sentence in Florida for
breaking and entering a poolroom.   Writing from his prison cell,
he filed for a writ of habeas  corpus,  claiming that he was not
represented by counsel at his state trial.  He argued that he was
entitled to counsel as a Constitutional right.   For 30 years the
nation's courts had operated on  a principle established in Betts
v. Brady (316 U.S. 455, 1942), which held that the concept of due
process did not necessarily entitle  state defendents to counsel
in every non-capital case.  The Gideon decision overturned Betts,
and established that  the right to counself  was fundamental and
essential to fair trials, and must be protected.   This decision
was far-reaching not only because of  the substance of the deci-
sion,  but also because it provided both a model and the motiva-
tion for other  state prisoners to petition for  writs of habeas
corpus in federal court if they could identify violations of Con-
stitutionally-protected rights.   One federal judge has suggested
that the Gideon  case typifies what "prisoner  litigation is all
about:"

     You know,  the most intriguing case to me that ever was
     filed by a prisoner was Gideon vs.  Wainright .  .  .
     where an age-old practice  that nobody had challenged;
     well, it had been challenged from time to time, but the
     right to a lawyer at your  trial was left to the state,
     except in exceptional circumstances.   If you couldn't
     speak the language,  or  were mentally defective,  or
     whatever.   And Gideon files this  case out of Florida
     prison,  and by God,  the Supreme Court of the United
     States listens to it, appoints a great lawyer to repre-
     sent, and changes the whole rule.  And that's why pris-
     oner cases in one sense are kind of fun, because,  yes,
     a lot of cases lack merit, and every once in awhile you
     find one that's  sort of a pearl that you  look at and
     say "you know,  he's put his finger on what I perceive
     to be a real problem  (Illinois Federal Judge,  1985:
     personal interview).

A national economy and a communication structure in which the me-
dia were becoming less parochial had a homogenizing effect on the
nation,  and the Supreme Court became a significant mechanism for
bringing local custom in line with national needs.  In one sense,
it is incorrect to view the judicial  activism of the 1960s as a
juridical revolution or as a shift  to a remarkably new period in
judicial philosophy.   Granted,  the judicial players on Supreme
Court acted out the legal drama with flair,  even ad-libbing when
the occasion arose.   But if the script of the legal play was al-
tered somewhat, the genre was not. Just as West Side Story was an
updated version of Romeo and Juliet, the Warren Court,  with five
of its members appointed by Eisenhower,  two of which were later
replaced by Kennedy,  continued the ideological and philosophical
script that had been created decades earlier.  It was with relief
and optimism that conservatives  welcomed Richard Nixon's inaugu-
ration in 1969,  for it was  believed that he would reverse the
tide of perceived liberalism in the federal courts.  Although the
extension of rights became highly visible in the dawn of the War-
ren court, it

RETRENCHMENT: 1968 AND AFTER

In the main, Goldman and Jahnige (1985: 232) are correct in argu-
ing that  New Deal policies begun  in the 1930s ended  with the
election of Richard Nixon in 1968.

Nixon acted quickly in an attept to shape the court to one of his
liking.   He had been impressed  with the conservative judicial
philosophy of Warren Burger,  and appointed him as Supreme Court
Chief Justice when Earl Warren  resigned.   Within his first 30
months, Nixon was able to appoint three additional justices.   In
his first few months in office, he also orchestrated attacks upon
liberal justices who he felt were excessively liberal.   In 1969,
President Nixon, through Attorney general John Mitchell, prepared
charges against Associate Justice Abe Fortas.   Fortas was forced
to resign because of earlier  violations that were considered in-
defensible for a Supreme Court Justice.   Following the defeat of
two Nixon nominees to replace Fortas,  Nixon,  Attorney General
John Mitchell and House Republican  Leader Gerald Ford joined to
attack Justice William O. Douglas, considered the most-liberal of
the justices.  In a speech on the House floor, Ford demanded that
Douglas be impeached for his unorthodox views,  liberal publica-
tions and life style[45].   Douglas survived the attack, but the
Supreme Court became more visible in  the public eye perhaps than
at any previous time,  and the Court lost much of its luster as a
legitimate, impartial body.

In some ways, the emergence of Nixon was reminiscent of Jackson's
election in 1828: The country was ideologically split between na-
tionalists and those of a more  parochial view,  and a president
was elected who,  it was believed,  would plug the dyke and roll
back the flood of federal  intervention in matters considered by
many to be private.   President Nixon had boasted in 1968 that he
would fill the federal courts with judicial conservatives to make
the Constitution "more secure," and since 1969, judicial appoint-
ments have included  consideration of whether the  candidate was
"soft on crime" (Goldman, 1975:  497).   Nixon appointed a Chief
Justice, Warren Burger,  and three associate justices to the Su-
preme Court, and his successor, Gerald Ford,  appointed one asso-
ciate justice.   The Nixon court became  known as the "four plus
one" court,  and given that Nixon was meticulously careful about
appointing co-ideologues,  it was assumed that the juducial trend
would be retarded,  if not actually reversed.   Such was not the
case.

If opposition to  civil rights legislation and  federal polices,
and political intimidation of the federal judiciary were intended
to influence judicial outcomes, they were unsuccessful.  Although
the Nixon "block of four" voted together on 54 of the 66 (82 per-
cent) cases it heard in the 1972 term,  none of the Warren Court
decisions were overturned (Pollack, 1979: 307).   The momentum of
the civil rights,  anti-war and  other social activist movements
had waned, but the impetus for change remained.  Hippies and yip-
pies moved  from the streets  and college campuses  into yuppie
world of law and intra-system  change.   The courts remained an
arena for social struggle,  and whatever their political ideology
prior to enlistment on the bench,  Supreme Court justices contin-
ued to expand individual rights.

In the 1970s, the court continued to affirm the New Deal and War-
ren Court legacy, although with little enthusiasm.  Decisions in-
consistent with the legacy tended to be narrow in scope,  and had
little impact on reversing the civil rights trend.   Roev.  Wade
(410 U.S.  113, 1973), which overturned as unconstitutional state
legislation prohibiting abortion, symbolized the momentum of civ-
il liberties.   The case challenged Texas anti-abortion statutes
as unConstitutional under the concept  of personal liberty embod-
ied in the Fourteenth Amendment's Due Process Clause,  and under
personal,  marital,  familial and sexual privacy outlined in the
Bill of Rights.   In writing the majority opinion, Justice Black-
mun wrote:

     We therefore conclude that the right of personal priva-
     cyincludes the abortion decision,  but that this right
     is not unqualified and must  be considered against im-
     portant state interests.

The Roe decision  has been criticized for  "faulty legal logic."
This criticism is based on the  Court's attempt to proscribe Con-
stitutional guidelines for  anti-abortion state laws based  on a
trimester concept of  pre-natal life stages.   Awkward  as the
Court's reasoning may have been,   it was attempting to confront
the definition of "person," a  definition never specified in the
Constitution.   The Court was not making new law in this attempt.
It was attempting to balance states' interests in protecting pre-
natal life with womens' right  to sexual privacy.   In so-doing,
the Court was faced with problems of legal definitions,  medical
technology which changed conceptions of  "life" and Fourth Amend-
ment rights by way of the Fourteenth Amendment.  The decision il-
lustrates the impossibility of literally application of Constitu-
tional language.  Despite the complaints of strict Constitutional
constructionists,  changes occur for  which previous concepts of
and method for dispute resolution are unworkable.  When the judi-
ciary recognizes and  attempts to address these  changes through
interpretation of law,  it is accused either of "making new law"
or of rewriting the Constitution.   These criticisms tend to oc-
cur, however,  only when decisions challenge a preferred view of
social order rather than on the legal logic itself.   Examination
of legal logic tends to be used, as discussions of Roe vs.  Wade
indicate, as a rhetorical strategy to promote political ideology.
This rhetorical strategy has been  used frequently especially by
conservatives when their appointees attempted to follow Constitu-
tional ¤rather  than political principles in  constructing deci-
sions.

Civil rights advocates, however,  are not immune from such criti-
cisms.   They, too, claimed "foul" when the Constitutional logic
appeared to counter the logic of civil liberties[46].   Further,
aggressive enforcement of civil rights legislation continued dur-
ing the Nixon Administration,  largely  as the result of career
civil servants retained from earlier  years[47].   On the whole,
rights that  were previously established were  consistently pro-
tected,  and although the trend  toward expansion of rights has
visibly slowed, it has not halted.   This period is, it should be
remembered,  the one in which  the rights of criminal defendants
and prisoners was dramatically increased.
Contrary to some views,  the  administration of President Carter
was not a reversal of Nixon's program.   As * (198*) has persua-
sively argued,  Carter's general  political program was--if for
different reasons--similar, if not identical, to that of his suc-
cessor, Ronald Reagan.  Carter appointed no Supreme Court justic-
es and relative few (*) district or appellate judges.   Carter's
emphasis on civil rights did not  translate into a resurgence of
civil rights litigation in the courts.   The civil rights litiga-
tion rate (sum it).   There is some evidence that his federal ap-
pointees were somewhat more conservative  than other democrats in
deciding some liberty issues, and in fact approximated the stance
of Reagan's ppointments (Suchner, Thomas and Aylward, 1986).
It was under President Reagan that  a direct broadside on "judi-
cial activism" and civil liberties was levelled.   Reagan pledged
both during his first presidential campaign and after election to
reverse the trend of "judicial  liberalism." He delegated his At-
torney General,  William French Smith,  the task of bringing the
federal judiciary  into ideological alignment  with conservative
principles:

     In October, 1981, Attorney General William French Smith
     launched a broadside attack on  the federal courts for
     "subjective judicial policy-making."  President Reagan,
     he said,  would  appoint new judges attuned  to "the
     groundswell of  conservatism evidenced  by the  1980
     elections." Mr. Reagan has done that. .  .   (Taylor,
     1984: E5).

The view persists that "judicial  activism" has created excessive
judicial abuses and should be  reversed (Burger,  1974,  1982;
Meese, 1985;  Smith,  1982).   Mid-way through his second term,
Reagan has appointed political  and judicial conservative Sandra
Day O'Connor to the Supreme Court.  Her appointment has created a
solid conservative voting block that includes Chief Justice Burg-
er and Justices Rehnquist and White.   As a consequence, a single
vote by a moderate judge has created the 5-4 majority required to
rule against civil liberties issues.   Rulings have gone particu-
larly against suspects  in criminal proceedings and  for states
rights,  although there have been  some pro-rights surprises in
these areas.

It is too early to assess  the impact of current Reagan appoint-
ees--especially of federal appellate  judges--on civil liberties.
It seems certain,  however,  that the attack on civil liberties
will not reverse the established trend.  It is also doubtful that
rights once given will be readily relinquished.  This ideological
predilection has not, however, produced remarkable results.   The
philosophy underlying Burger Court decisions has,  however,  as
Howard (1980) observed, been ad hoc.

Summary

Different social eras create different social isues, and this re-
quires refinement, even creation,  of new legal norms to replace
older ones that no longer suffice  to resolve conflicts or main-
tain social harmony.   So countervailing forces to industry power
came into being---(miller, 1982:  73)---in 1860s,  civil rights
law;  anti-trust in progressive era (bring in stuff from hist he-
re); labor in 1930s, civil rights in 1960s.  [Note the difference
between Status rights and personal rights (Miller, 1982:  92).

Status rights may conflict with personal rights, and this has im-
pelled much of the response of Burger court against prior Supreme
Court decisions.  (Miller, 1982: 92).   The use of courts in so-
cial struggle has  its roots in the transition  to an industrial
economy during the closing decades  of the nineteenth century and
the social transformations of the first decades of the twentieth.
With the lag of about a  generation between changes in the social
and economic system,  the Supreme Court during this period remade
the Constitution in the image of Social Darwinism,  supporting of
the interests of big business (for an empirical discussion of Su-
preme Court ideology and decisions during this period,  see espe-
cially Schubert, 1974).  With the emergence of large, centralized
industrialized bureaucracies,  corporations began to acquire the
status of legal subjects.   This dramatically changed the concep-
tion of the legal subject in that entities other than individuals
became bearers of rights and privileges,  and could in principle
engage as "equals" in litigation.

The transition from laissez faire  to monopoloy capital also re-
quired transformations in the legal  relations governing the pro-
ductive and exchange structure between corporations.  Legal rela-
tions were  further mediated  by labor  struggles of  the late
nineteenth and early twentieth century.   The outcome was an ex-
pansion of rights--albeit in  asymetrical balance--for individu-
als,  corporations (which acquired and strengthened their subject
status)  and the state itself  (as it acquired increasing legal
power and authority by which to intervene in mediating social ex-
istence).  Although this increased subject status conferred a va-
riety of rights,  it also implied obligations in that legal sub-
jects such  as corporations  and government  agencies,  became
potential targets for litigation,  thus creating a new avenue for
resolving social conflict under federal laws.

CONCLUSION

The purpose of this manuscript has  been to illustrate the manner
in which a variety of social  forces have guided the development
of the content and application of  law over the centuries.   The
emergence of law as a social  practice began at least 3,000 years
ago, and has changed in response to new social conditions.   The
laws of Hammurabi were not appropriate for more complex societies
such as Greece or Rome.  Mosaic law was fine for a relatively un-
complex and homogeneous society, but it was not appropriate for a
society that required meeting the needs of diverse groups.   The
legal principles of England, although still with us today,  were
practiced much differently,  primarily because the nature of Eng-
lish society was much different than the one in which we current-
ly live.   The laws of the post-Civil War era were likewise modi-
fied,  because the industrialization and emergence of new social
groups had different needs than existed prior to the Civil War.
What does this tell us about the relationship between law and so-
ciety today?  It demonstrates that law changes in response to so-
cial conditions,  and that legal principles can be interpreted--
correctly--to meet the changing social conditions.   The meaning
of the Fourteenth Amendment, for example, has changed largely be-
cause new groups have demanded equal protection,  and the princi-
ples embodied in the Fourteenth Amendment provided the logic, but
not necessarily the explicit provisions,  to meet them.   Hence,
when we speak of "legal fundamentalism"  or a "doctrine of origi-
nal intents," we must first understand  the role of law in socie-
ty, how law changes, and above all, the different intents of con-
stitutional principles.   The Constitution,   as a document of
compromise, was, above all,  a set of guidelines for reconciling
diverse interests and goals,  not an exact blueprint to be liter-
ally followed to the letter.

                            Footnotes

[1] My own view is that legal fundamentalism is a political,  not
    a judicial, ideology. This would make a good paper topic.
[2] In some ways,  this system was similar to the logic of civil
    law,  in which offenders are expected to pay compensation and
    penalties.   In blood feuds, the wrong was "corrected," and a
    bit more tacked on as punishment.  This, on occasion, perpet-
    uated a feud,  especially when the offender's family felt too
    much vengeance had been extracted,   and retaliation was re-
    quired.
[3] Feudalism was the dominant form of social organization during
    the Middle Ages.  The term "medieval" as used here is synony-
    mous with "Middle Ages," and refers  roughly to a period be-
    tween the fall of the Roman Empire (fifth century A.D.)   and
    the Renaissance (fifteenth century A.D.).  Feudalism has been
    called an invention of historians (Bean, 1968: 1) in that the
    concept itself was  not used until the  nineteenth century.
    Customary historical usage defines  feudalism consistent with
    the root meaning of feudum, namely, a designation of the mil-

    itary obligations required in return for holding a portion of
    land.   It is especially these  obligations and their corre-
    sponding social relations that formed  the bulk of civil law
    through the Middle Ages.    Wallerstein's definition is pre-
    ferred as the most descriptive.
[4] "suitors," Suitors were the owners of property and the elect-
    ed men of the hundreds (or townships).   By the eleventh cen-
    tury, much of England was divided into shires,  except where
    Danish influence prevailed,  and each shire was divided into
    small units known as hundreds for fiscal purposes.   The hun-
    dred was both  a territorial division and a  court,  and as
    Holdsworth (1956:  7) has argued they were also a form of de
    facto police organization.   The hundred court was the judi-
    cial unit  for ordinary affairs  and met every  four weeks,
    while the county court was appointed  to be held twice a year
    (Pollack and Maitland, 1968: 42).
[5] The witan was a feature of European administration and refers
    to a body elected or appointed  to advise the king.   Oleson
    (1955:  110)  contends that the  term "witenagemot" has no
    broader technical meaning other than as  a meeting of the wi-
    tan.
[6] The concept of the king's peace  did not originally apply to
    all subjects,  but  was limited to protect the  king in his
    house and travels.   A violation was an act of personal dis-
    obedience toward the king, much more serious than a breach of
    simple public order.  After the Normans, however, the concept
    rapidly expanded and was used as  a general rule by which to
    maintain public order.
[7] The continental practice of trial by  combat was not used un-
    til the Normans,  and the customary procedure in English tri-
    als was the oath,  a system in which a defendant was required
    to have a designated number of "oath helpers" swear to his or
    her character.   In the oath system, which became popularized
    especially after the twelfth century,  the district's reputa-
    ble men who were presumed to know  the facts of the case were
    summoned to pronounce on oath the truth of the matter,  thus
    deciding the case (Poole, 1964: 406).   Failing the oath, the
    ordeal, usually of hot water or iron,  was employed to deter-
    mine the verdict.  (Barlow, 1972: 51).
[8] although Edward's reign  was marked by a  struggle for power
    between natives and foreigners,   primarily French (Oleson,
    1955:  5).   it tends to be forgotten that William's claim to
    the throne was based in part from his English ancestry,  and
    the close  relationship between England and  Normandy during
    this period.   There is also strong evidence that Edward the
    Confessor himself  favored Duke  William as  his successor.
    Rather than a major watershed  in English history,  the so-
    called Norman conquest  was a more or  less typical violent
    transition,  and not the first time  a foreigner had been an
    English King.
[9] These custom-based procedural importations  included trial by
    ordeal and combat,  which the Normans preferred as a means of
    resolving disputes.   The theory behind this process was "di-
    vine intervention," although its use  in England has probably
    been overstated.   They also had inherited a tradition of use
    of the Carolingian missi dominici and of the sworn investiga-

    tion, which they reshaped (Barlow, 1972: 107).  Barlow (1972:
    107) has reminded us, however,  that although Norman law was
    French in origin,  it was shaped according to provincial cus-
    tom and had never been committed to writing.  The Normans al-
    so introduced trial by combat;  however in the Norman system,
    the defendant had the explicit  right to refuse combat,  al-
    though the defendant might then face trial by ordeal.
[10] That he ruled for  over a decade may be due  in part to his
     counsellors, especially Anselm, Abbot of Bec,  who suggested
     that William 1) recognize the harshness of his rule, 2) for-
     give the debts due him, 3)  restore the laws of the Confes-
     sor,  4)  reduce his ministers' oppression of the populace,
     and 5) redress the wrongs of the Church (Davis, 1957: 89).
[11] A functional equivalent of this body had existed for several
     centuries,  and it slowly became a formal and departmental-
     ized institution and an effective organ of Norman and Angev-
     in administration.   Under Edward the Confessor,  this body
     was the witan, but under the Normans became the Curia Regis.
     In addition to its judicial role, it kept careful records of
     all cases which came before  it,  thus providing a written
     legacy for subsequent generations.   As Poole (1964: 11) has
     observed, it was, at least through the eleventh century,  a
     court essentially feudal in  character comprising high-rank-
     ing persons and bishops who sat as barons.   It was a tribu-
     nal of loyal supporters,  but  nonetheless a court that at-
     tempted, for the time, to administer law systematically.  In
     the eleventh century,  the curia Regis were those assemblies
     that met with  the king three times  annually and performed
     judicial tasks.   Under Henry II, it began taking shape as a
     strong, central court which later produced the court of Com-
     mon Pleas.   The advice of this body,  even in its infancy,
     could not be ignored,  for  without the material support of
     the participants,  the king could  not carry out his policy
     (Poole, 1964: 11).
[12] Ecclesiastical law remained more  rational than English law.
     Under canon law,  the rules of evidence were balanced in fa-
     vor of the defendant.   There were two stages to an ecclesi-
     astical evidentiary proceeding:
     In the first,  the evidence brought by the accuser was
     marshalled and sifted;  secondly,  if the evidence was
     regarded as inconclusive,  the accused had the right of
     clearing himself by the oath of compurgators.   The law
     of evidence, as understood by the Church,  was compara-
     tively scientific, and many accusations which the untu-
     tored common sense of a  lay judge would have regarded
     as completely proven were rejected  as baseless in the
     courts-Christian (Davis, 1957: 208).
[13] This expansion of administration is analogous to our contem-
     porary judicial response to overload  in which Chief Justice
     Berger,  rather than transfer  power outside the judiciary,
     has recommended new inferior courts,  under jurisdiction of
     the U.S.S.C., be created to process additional cases.
[14] Forest law, which governed the vast extent of the king's do-
     mains,  was bound neither by Norman legal forms nor by Eng-
     lish traditions,  but was framed  absolutely at the king's
     will.  These forest laws were later to become a key focus of
     class struggle, symbolizing the diverse interests of a vari-
     ety of groups (see Thompson, 1975).
[15] Members of this body were actually nobles,  but were called
     justices when they assumed their new position.
[16] The Athenian jury was more a forum than a trial,  and trials
     with several thousand "jurors"  were not uncommon.   Unlike
     its later English distant cousin, the Athenians did not rely
     on evidence, witnesses, or "rules of fairness." Although ju-
     ries derived from statute law, the procedures did not.  Most
     scholars also agree that the jury  was not a novelty in the
     twelfth century.   It had been employed in primitive form in
     Anglo-Saxon England and, on the continent, by the Carolingi-
     an emperors in the ninth century  before passing to the Nor-
     mans.
[17] For an excellent discussion of this  aspect of law and jus-
     tice  in the  twelfth century,   see especially  Poole,
     1964:385-424.
[18] An assize referred to a convening body, and the laws enacted
     at such sittings were referred to as "assizes." The title of
     a particular assize generally took  the name of the location
     in which this body sat.
[19] Henry attempted to put in  writing those limitations on the
     clergy that had previously been custom,  and he attempted to
     force the  bishops to commit  themselves publicly  to obey
     crown authority.  The Pope, normally predisposed toward Hen-
     ry, rejected these constitutions and sided with Becket,  who
     rejected the  king's attempt to explicitly  subordinate the
     Church.   It was this assize particularly which illustrated
     the independence of archbishop Thomas Becket,  Henry's close
     friend,  from his former mentor.   Although Henry carefully
     modified his proposals when  confronted with opposition from
     the church (and Becket, prior to his murder),  these consti-
     tutions for the first time in English history created a code
     of laws issued by the sole  authority of the king,  without
     any appeal to the sanction  of binding and immutable custom
     (Green, 1968: 128).
[20] As Rembar (1980:  20) has observed,  appeal originally re-
     ferred to a criminal proceeding  brought by a private citi-
     zen,  the practice of appeal and indictment existed side by
     side.  Appeal tended to culminate in a jury trial.   It was
     not until several centuries later that the meaning of appeal
     as judicial review of legislation  or litigation became com-
     mon.
[21] The Church withdrew the sanction  of its authority from all
     forms of ordeal by 1215,  but  even prior to this there was
     decreasing confidence in its validity (Warren, 1973: 321).
[22] John sought Papal intervention, not as King of England,  but
     as Papal servant and bearer  of Christianity,  and he con-
     vinced the Pope  that the Magna Carta  threatened the Cru-
     sades.
[23] Although the Magna Carta extended the rights of men,  it was
     not so generous in recognizing the rights of women.  Chapter
     34, for example,  explicitly strengthened their subservient
     social status:   "No one shall  be seized nor imprisoned on
     the appeal of a woman concerning the death of any one except
     her husband."
[24] The term Parliament came into use in the mid-thirteenth cen-
     tury, but the barons who met at Runnymede, despite their ap-
     parent lack of representation from shires and boroughs, were
     labeled retrospectively  Parliamentum Runimedae  (Maitland, 1913: 72).
[25] This contributed to the rise in  the popularity and power of
     the court of equity in the chancery:
     because of the hardening and  definition of the Common
     Law, because of the decline of the personal monarch and
     the continued delegation of  his function,  including
     even some of his prerogative powers, and because of the
     unsettled times, the chancery emerged unmistakably as a
     great court  of equitable jurisdiction,   with power,
     precedents, and procedures of its own (Wilkinson, 1964:
     266).
[26] An analysis of the political  and ideological impact of the
     Inns of Court on law and  the judiciary remains to be done.
     One one suspects it was substantial, given the conflicts be-
     tween the nobility and crown,  and their joint opposition to
     the church.
[27] This was the period of the Carrier Case (1473),  a landmark
     in theft law.   In this case, a person who had been assigned
     responsibility for transporting bales had taken the contents
     for personal use,  and was  apprehended and charged with a
     felony.  Under the laws of the period, a person who came le-
     gally into possession of an object was not considered guilty
     for converting it for personal gain, and this incident,  al-
     though it may  seem odd in the hindsight  of legal history,
     nonetheless required considerable debate and new interpreta-
     tion of the law by which felonious theft was defined.
[28] Although the Star Chamber was  referred to in the fourteenth
     century (Holdsworth, 1956:  496), its origins are considered
     by most historians to be more recent.   Consensus holds that
     it took the form by which  we know it primarily under Henry
     VII and the name  was taken from the shape of  the room in
     which it met.   It was under Henry VIII and Elizabeth, how-
     ever,  that its character as an abusive,  powerful body was
     shaped.  Its significance was not so much judicial as polit-
     ical,  for it operated beyond  the reach of local terrorism
     and was empowered  not only to issue writs  of subpoena but
     also to examine defendants upon oath.  It dealt with a broad
     range of offenses, and its jurisdiction stretched to include
     nobility who had been previously exempt from ordinary tribu-
     nals (Fisher, 1913: 21).
[29] Public trials,  explicit procedural rules,  emphasis on the
     state being required to prove the case, and relative freedom
     to speak in court distinguished English from European trials
     at this time.
[30] This was the period of Thomas More's UTOPIA (1516), in which
     he described a mythical society in which there were few laws
     and no lawyers.
[31] For an  excellent review of  and response  to doctrinaire
     states' rights advocates and  critics of Constitutional ac-
     tivism, see especially Miller, 1982.
[32] For a brief but excellent history  of English common law in
     the colonies, see especially Reinsch, 1968.
[33] The decline of Puritanism  occurred partially through inter-
     nal schisms between commercial and agrarian interests,  and
     partly because  of competing challenges  from non-Puritans.
     Perhaps the most significant reason for the decline of Puri-
     tanism lay in its doctrine:
     It was always a difficult  creed to hold,  containing
     seemingly irreconcilable  principles which had  to be
     kept in alignment by  constant argument and adjustment.
     Its concepts of God, free will,  knowledge and revela-
     tion,  sin,  and moral duty were maintained throughout
     the seventeenth  century in delicate  intellectual and
     imaginative balance;  to later generations of ministers
     and laity they seemed les capable of proof or reconcil-
     iation.   As  the concepts themselves came  under the
     scrutiny of a rationalistic, hard-headed age,  the sys-
     tem they supported disintegrated. .  .(Russell and Mor-
     purgo, 1965: 345).
[34] The first  major restrictive act  was the  Navigation Act
     (1660), which regulated colonial commerce in order to expand
     English trade.   A century later, the Sugar Act (1764), the
     Stamp Act (1765), the Townshend Acts (1767)  and the "Intol-
     erable Acts (1774)  prompted overt opposition to the Crown's
     legal authority and created fertile ground for resistance to
     English legal and political authority.   Had the Crown taken
     a less restrictive policy toward the Colonies, it is unlike-
     ly the rebellious merchants would have found sufficient sup-
     port for their cause.
[35] For a sympathetic but nonetheless highly critical evaluation
     of Beard, see especially Brown, 1965.   See also the work of
     Alfred A.  Young, of NIU, in In These Times, Vol.  11, #34,
     Sept 9-15: 12-13.
[36] The term "radical Republican" did  not mean that this group
     shared the political philosophy of  what has become known as
     "leftists."  The advocacy of minority  rights to which this
     group adhered was  not motivated by broad  philosophic con-
     cerns,  but by political expediency.   In the areas of com-
     merce,  individual rights and other issues,  they were not
     significantly distinguishable from their colleagues.
[37] Collins (1974/1912:  7-12) has argued that the primary rea-
     sons for the passage of the Fourteenth Amendment were polit-
     ical.  While acknowledging racial equality as one motivating
     factor,  he adds that other functions included punishing the
     South,  expanding and centralizing the power of the federal
     government, and enhancing control of the Republican party.
[38] There were three other sections in the fourteenth amendment,
     none bearing on civil rights.   The second section specified
     that representative apportionment in  Congress would be pro-
     portionate to state population; the third disallowed persons
     taking part in "insurrection or rebellion against the United
     States" from serving  as federal officials except  by two-
     thirds vote of  Congress;  the fourth removed  federal and
     state liability for or debts incurred through the civil war.
     The final section provided Congress  with the "power to en-
     force,  by appropriate legislation,  the provisions of this
     article."
[39] The following states were excluded:  Alabama, Arkansas, Flo-
     rida, Georgia, Louisiana, Mississippi, North Carolina, South
     Carolina, Tennessee, Texas and Virginia.   By 1868, seven of
     the confederate states were re-admitted  to the Union,  and
     Texas,  Virginia and Mississippi were re-instated during the
     Grant administration after they  had endorsed the fifteenthh
     Amendment and Black sufferage.
[40] The Congressional debates on civil liberties legislation and
     amendments between 1849-1876 have been reprinted by the Vir-
     ginia Commission on Constitutional History, 1867.
[41] Jim Crow laws  were laws specifically intended  to maintain
     racial segregation  by placing restrictions  on interracial
     marriage, voting, ownership of property, employment,  resi-
     dence,  use of public accommodations and education.   They
     functioned as  current Apartheid law does  in contemporary
     South Africa.
[42] economy of the Reform Era, 1890-1948,  see especially Green-
     berg, 1974; Kokol, 19**;  Weinstein, 19**;  Chandler, 1972,
     and Aronowitz, 1973).
[43] The best summary  of federal civil rights  legislation and
     corresponding legal cases affirming them is probably Antieau
     (1980).
[44] Gary Rowe, an FBI informant, was implicated in the 1965 mur-
     der.   A subsequent civil suit alleged  that the FBI new of
     the danger to Ms.  Liuzzo's saftey, but failed to take pro-
     tective action (Peterson, 1983).
[45] Ford apparently had misgivings about  his involvment in the
     affair,  and later suggested that he  had been "had" by his
     colleagues (Pollack, 1979: 299).
[46] Two examples of this include Bakke v. *, (* v. * ), in which

     the court ruled in favor  of merit qualifications for admis-
     sion to a California medical school, and in *,  in which the
     Court ruled in favor of  laying-off municipal workers on the
     basis of seniority rather  than minority preference.   The
     Constitutional logic of both cases was sound,  and there is
     no evidence that  either case had any  impact on subsequent
     civil liberties cases.
[47] For an excellent discussion of  federal application of civil
     rights policies,  see especially U.S.  Commission on Civil
     Rights, 1976).


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