Showing papers on "Common law published in 1968"

The Origins of the Medieval English Jury: Frankish, English, or Scandinavian?

Abstract: Serious study of the origins of the jury began in the time of William Stubbs and F. W. Maitland, when the work of the German historical school of jurisprudence reached England. Until then knowledge of the medieval English jury before the time of Henry II had been more legendary than real. William Blackstone had traced the common law to a compilation that King Alfred supposedly commanded to be made. Blackstone had written in his Commentaries on the Laws of England, “Some authors have endeavoured to trace the original of juries up as high as the Britons themselves, the first inhabitants of our island; but certain it is that they were in use among the earliest Saxon colonies.”In the mid-nineteenth century the Anglo-Saxon origin of the jury was still a popular legend in England, but the German school of legal history sought a more scientific study of the problem. A representative of that group, Heinrich Brunner, in his book, Die Entstehung der Schwurgerichte, rejected the traditional teaching that the jury was Germanic and popular in origin. Instead, he believed it to be royal in origin, an authoritarian means of gathering information, particularly information of a financial nature. It first appeared as the inquest of the Frankish kings, inherited from the imperial Roman fisc. It passed from them to the Norman dukes and then was introduced to England with William. According to Brunner the Norman kings reserved this fact-finding technique for themselves, extending it to their subjects in only a few cases.

The unique nature of the concepts of western law

Abstract: In this article the author examines the legal constructs underlying modern Western law. First, the author compares the modern law of property and contract with primitive and archaic law. Next, the author discusses how legal constructs first appeared in Roman law, and suggests that their appearance was the most important factor in the development of classical Roman law. He also examines a thesis based on the development of constructs in Greek mathematical physical philosophy, and compares legal constructs with the constructs of mathematical physics. Finally, the author illustrates how the important constructs of Roman law were adopted by the common law, thus transforming the common law from an archaic to a modern legal system. In concluding his article the author suggests various techniques of analysis for further clarifying the nature of legal constructs.

Mesne Process in Personal Actions at Common Law and the Power Doctrine

Abstract: In 1917, Mr. Justice Holmes delivered the well-known dictum that \"The foundation of jurisdiction is physical power . . . .\"I To many persons this statement has constituted an article of faith. In 1956, Professor Albert Ehrenzweig challenged the basis of this faith in a provocative article. Briefly stated, Ehrenzweig's thesis is that the true basis of jurisdiction at common law was a principle he calls \"forum conveniens,\" based on \"contact\" of the forum with either the case (e.g., accrual there) or with one of the parties (e.g., domicile of the defendant, or domicile of the plaintiff if the defendant be an alien).8 Under the modem doctrine of forum non conveniens, jurisdiction is technically present but is declined because of the inconvenience of the venue. Under Ehrenzweig's doctrine of forum conveniens, jurisdiction is technically lacking, not merely declined, when the requisite contacts are

The determination of legal facts and economic guideposts with respect to the dissemination of scientific and educational information as it is affected by copyright—A status report

Abstract: The study determines the amounts, kinds, source, and age of copyrighted materials copied by United States libraries and information centers. It also examines the “fair use” principle to see if the current copying practices do in fact conform to copyright law. More than one billion pages of copyrighted materials were copied by United States libraries in 1967, almost all as single copies. The librarian equates this practice with fair use despite the fact that there is nothing in copyright statute or the common law to justify this practice. Under current beliefs and practices single-copy reproduction is not significantly affected or restricted by copyright law. Conclusions and recommendations based on the study are made.

Public Policy and National Preferences: The Exclusion of Foreign Law in English Private International Law

Abstract: IN the resolution of legal disputes containing supranational elements national courts utilise the rules of private international law to identify the appropriate governing legal prescription. On some occasions, however, when foreign law is thus found to be prima facie applicable to the situation, it is not applied; instead, for certain reasons of policy, it is rejected by the forum. This essay examines the range of this rejection of foreign prescriptions in English law.' Public policy developed first as a judicial response in cases containing no transnational element.2 This domestic (or "internal ") public policy differs considerably in its history, scope and judicial function from public policy in the domain of private international law. Because of the intangible nature of the concept in a legal system purportedly denying an activist or legislative role of the courts, even internal public policy-articulated as such-has played a minimal part in the judgments. Instead, the potentially " unruly horse "

Chinese Family Law in a Common Law Setting

Abstract: The development of Chinese family law in Malaysia and Singapore provides an interesting case study of an attempt to fuse elements of two disparate legal systems in a foreign social climate. The present court system of Malaysia and Singapore and the adjective law are based in large part upon principles of English common law, while the substantive family law applied to the Chinese people is in part a reflection of “traditional”1 Chinese law. These diverse legal orders function in a social setting which, although substantially influenced by Chinese tradition, is nevertheless a distinct environment, and which on the other hand certainly bears little resemblance to the native habitat of the common law.

The duty of business to serve the public: analogy to the innkeeper's obligation

Abstract: In this article the author examines the duty owed by business to the public and examines provincial statutes which censure prohibited conduct in any public institution. The author discusses the history leading up to such legislation and examines the common law surrounding the centuries-old relationship of innkeeper and guest. The author then analyzes some of the obligations owed by an innkeeper to his guests, and examines the various Canadian statutes dealing with that relationship, as well as with many others. In concluding his article, the author reinforces the recognition given by common law and statute, and argues that those running their businesses must do so in a manner that ensures fair and equal treatment of every prospective patron and member of the public.

The Federal Courts and the American Law Institute: Part II

Abstract: I have less to say about federal-question jurisdiction, because the ALI has done much better with this subject than with diversity. The jurisdiction itself, unlike diversity, is not very controversial, despite the well-known fact that it did not exist in the trial courts until 1875;224 it seems dear that if we are to have original federal jurisdiction at all it ought to extend to the enforcement of federal rights. The Institute accurately marshals the arguments: Federal judges have relative expertise in dealing with federal law; uniform interpretation is promoted by federal jurisdiction; state courts may be hostile to federal law. Supreme Court review of state courts, limited by narrow review of the facts, the debilitating possibilities of delay, and the necessity of deferring to adequate state grounds of decision, cannot do the whole job. The Institute endorses the general federal-question jurisdiction of the district courts in order \"to protect litigants relying on federal law from the danger that state courts will not properly apply that law, either through misunderstanding or lack of sympathy. '225 I agree, and I shall not expand on the argument for the jurisdiction. One difficulty with federal-question jurisdiction is that nobody knows how to define it. Its constitutional scope is quite broad. Despite smoke screens thrown up by dissenting opinions, 22 however, the Supreme Court has never suggested the jurisdiction includes the vast category of cases in which there are potential federal issues. The test of the famous Osborni case is rather that the case must contain some \"ingre-

The international unification of law

Abstract: The international process of assimilating the diverse legal systems of various countries goes back into ancient history. Accordingly, an historical starting-point is a useful one for considering the operation of this process in our own day, for it gives us the two notable precedents of Roman law and the common law. Both were to become the legal systems of a large part of the world, either by conquest or settlement, and both contributed to the unification of law as much by coincidence as by design. The two ancestral systems were by-products or aspects of a particular kind of civilization and a particular way of life, and their application as legal systems to new countries was rather a matter of necessity, convenience or military strategy than of legal elegance. Yet of the various differences that could be drawn between Roman law and the common law, none is more striking for the present day than the traditional, if inaccurate, view of Roman law as a body of legislation, as contrasted with the traditional and true view of the common law as a body of judge-made law capable of development by judges to fit new and local conditions. From these beginnings Roman law has become the ancestor of many codified legal systems, of which the common features are not only a similarity of substantive rules, but also a belief in legislation as the normal, if not the only possible, method of law reform and unification. But if the history of modern Roman law is one of legislative unification, that of the common law is one of unification primarily by judicial action and decision. For unification is a familiar process in the history of English law. It was the problem presented to the early Norman kings, faced with widely different local customs and different methods of judicial administration in the country. Unification of law followed to a great extent the centralization of the legal system and its administration by the judges, who were sent on assize and met regularly to discuss what should be the common law of the country, that is, the rule to be made common from the variety of choices as the most appropriate for the whole community. Some local customs have survived, but we all know how few they are. Starting thus from a domestic and largely unconscious process of unification of the law of England, we find in the thirteenth century a unification of that law with the law of Wales by the imposition of English law on the Welsh by Edward I in the Statute of Wales in 1284. Unification

The prerogative of the Crown in external affairs and constituent authority in a Commonwealth monarchy

Abstract: Whatever may be the policy of a (declaratory) power in the Crown conclusively to certify the limits of its territorial sovereignty, and whatever be the ultimate fate of such a power [linked, as it is in part, to the policy of. and indeed the existence of, a (constitutive) prerogative of cession] still at all events the constituent function of the Crown is founded upon the (constitutive) prerogative of annexation, as distinct from any declaratory power. To annexation the will and pleasure of the Crown is, as a matter of constitutional law, both sufficient and necessary, without regard to any consideration of international law. The necessity of Her Majesty's pleasure is supported inter alia by the case of Staples v. The Queen (1899) (unreported), heard on application to the Privy Council for leave to appeal from the High Court of Matabeleland. A full report of the proceedings in both courts, including argument and reasons, being appended; the Privy Council deciding that territory remained foreign notwithstanding destruction by armed force of the previous native sovereignty and ensuing complete control by the Crown... The prerogative of legislation is considered; semble a grant of representative institutions may be held subject to a reservation of the prerogative of legislation contained in an earlier but governing instrument. A prerogative of the Crown to legislate for the subject even in foreign territory, wherever the Crown has assumed a jurisdiction, is supported by limited judicial authority whose correctness is doubted. The true extent is considered of the continuance of existing laws in conquered and ceded territories. The establishment of legislative institutions is considered. The incidents of these institutions are elaborated upon, and particularly the privileges of legislative bodies erected by the Crown. An account is given of the events in Newfoundland in August, 1838, giving rise to the leading case of Dr. Kielley in the Courts of Newfoundland, and, on appeal, in the Privy Council, laying down the rule that only necessary incidents are enjoyed at common law and not the lex et consuetude parliament! as known at Westminster: the rule herein laid down being applied more particularly against a power of committal for contempt. Earlier colonial and Privy Council precedents in the opposite sense are discussed. The rule is suggested to be one dictated by considerations of policy simply, and not determined by any particular view of the true basis of privilege in England. If anything, assimilation of the lex et consuetudo parliamenti to the common law serves as an argument for its passage to the colony, while attribution to lost statute might tend to establish peculiarity to England and colonial inapplicability; but the rule of inapplicability may be applied in any event. [Please see thesis for the complete abstract]

Legal Lore of the Wild West: A Bibliographical Essay

Abstract: T HE LEGAL HERITAGE Of the English common law, already adapted to American conditions in the Atlantic colonies and Mississippi Valley, further evolved in the distinctive environment of the plains and Pacific coast. The student of this evolution, however, is hampered both by the paucity and fragmentary nature of the available material and by its deplorable presentation. No single publication has traced the history of law in the West and its administration. What little material is available must

Guyana's Alternative to Socialist and Capitalist Legal Models

Abstract: "We are building a vigorous economic democracy which is not a copy of either Eastern communism or Western capitalism." With these words Guyana's Prime Minister, L. F. S. Burnham, introduced his government's first economic plan to his complex multi-racial community of some 680,000 people in February 1966.' He spoke on the eve of independence from Great Britain, following a period of experimentation with autonomy under the supervision of the Colonial Office and the British Governor.2 Burnham chose the opportunity to declare his government's intention to introduce to South America a unique program for "development." Guyana excites attention throughout the common law world because of its attempt to erect a new edifice upon a legal tradition stemming from England, although still influenced also by the Dutch colonists who brought with them to the new world in the seventeenth century the customs of Holland formulated in Roman-Dutch law.' Because of the English influence Guyana is governed today quite differently from the other states of South America where the Romanist systems of Spain and Portugal prevail. Many of Guyana's leaders have "eaten their dinners" at London's Inns of Court where they absorbed the traditions of the common law. They declare themselves currently determined to retain the humanistic values and forms of the English common law while creating a new society. The aim, so the Prime Minister says in conversation, is to imbue old institutions with new content rather than to revolutionize familiar forms.'