The Crimes of Seditious Libel and Seditious Speech

2020 ◽  
pp. 77-104
Author(s):  
Wendell Bird
Keyword(s):  
Eighteenth Century ◽  
Seventeenth Century ◽  
Common Law ◽  
Government Officials ◽  
Chief Justice ◽  
Legal Context ◽  
The Common ◽  
Star Chamber ◽  
The Revolution

This chapter provides the legal context for these discussions of eighteenth-century freedoms of press and speech and seditious publishing and speaking. The common law crimes of seditious libel and seditious words arose in England to criminalize dissent toward the king or government officials that could not successfully be suppressed as treason. The seventeenth-century crime of seditious libel was created by the Star Chamber’s Case of Libellis Famosis and other cases, and quickly attracted criticism for the Star Chamber’s prosecutions of such dissidents as Dr. Alexander Leighton, William Prynne, Dr. John Bastwick, Rev. Henry Burton, and John Lilburne. After the Revolution of 1688, that and other Star Chamber precedents were adopted by Lord Chief Justice John Holt, and an eighteenth-century framework of unique rules for prosecuting seditious libel was assembled by Holt in a series of cases, and was revised by Lord Chief Justice Mansfield.

Common Law Constitutionalism

2018 ◽  
Author(s):  
William E. Nelson
Keyword(s):  
Eighteenth Century ◽  
Seventeenth Century ◽  
Common Law ◽  
Legal Profession ◽  
Legal Institutions ◽  
Law System ◽  
The Common ◽  
Common Law System

This chapter shows how common law pleading, the use of common law vocabulary, and substantive common law rules lay at the foundation of every colony’s law by the middle of the eighteenth century. There is some explanation of how this common law system functioned in practice. The chapter then discusses why colonials looked upon the common law as a repository of liberty. It also discusses in detail the development of the legal profession individually in each of the thirteen colonies. Finally, the chapter ends with a discussion of the role of legislation. It shows that, although legislation had played an important role in the development of law and legal institutions in the seventeenth century, eighteenth-century Americans were suspicious of legislation, with the result that the output of pre-Revolutionary legislatures was minimal.

The Authority of the Administration

2020 ◽  
pp. 45-66
Author(s):  
Janet McLean
Keyword(s):  
Nineteenth Century ◽  
Eighteenth Century ◽  
Seventeenth Century ◽  
Common Law ◽  
Radical Change ◽  
Public Trust ◽  
Administrative Law ◽  
Legitimate Authority ◽  
The Common ◽  
Theoretical Foundations

The authority claims of the administration have undergone radical change with consequences for the shape and content of administrative law. In the seventeenth century, authority was claimed in office, as a means to limit the imposition of the King’s will and to secure the independence of officials, especially the judges. In the eighteenth century, virtue, property, and independence became the basis for office, and the common law sought to enhance such authority through notions of public trust. After the nineteenth-century transition to more centralised and bureaucratic hierarchy, democracy became the new source of authority for the administration, reinforced by the ultra vires doctrine. In each era, the authority claims of the administration have been reflected in the frameworks for judicial supervision. In this way the common law has simultaneously constituted and controlled authority. In the present day we are in the process of rethinking whence administrators derive their legitimate authority and the theoretical foundations of judicial review. Beginning with the authority claims of the administration and framing a juridical response which reflects and tests such claims would be a good place to start.

Sir John Davies on Custom and the Common Law

2020 ◽  
Vol 82 (3) ◽  
pp. 438-458
Author(s):  
Eugene Heath
Keyword(s):  
Eighteenth Century ◽  
Seventeenth Century ◽  
Political Theory ◽  
Common Law ◽  
Social Benefit ◽  
The Political ◽  
The Social ◽  
The Common

AbstractSeventeenth-century English common lawyer Sir John Davies sets forth, in his Irish Reports, a provocative and interesting argument on the nature of custom and its relation to the common law. This relatively unexplored argument shows how actions may emerge from conditions of liberty and slowly acquire qualities of social benefit and agreeability that are essential if the common law is to be identified with custom. Davies not only provides a coherent account of how custom might possess some reasonability, but he also seems to suggest that custom is unintended, thereby anticipating a theme found in eighteenth-century thinkers such as Mandeville, Hume, Ferguson, and Burke. In addition, Davies's account has important implications for political theory: the priority of the social over the political and a notion of political consent that arises via custom itself.

E Pluribus Unum

2019 ◽  
Author(s):  
William E. Nelson
Keyword(s):  
Eighteenth Century ◽  
Seventeenth Century ◽  
American Revolution ◽  
Political System ◽  
Common Law ◽  
Main Theme ◽  
American Colonies ◽  
The Common ◽  
Do So

This book examines the role of the common law in the life and politics of Great Britain’s North American colonies from the founding of Virginia in 1607 to the outbreak of the American Revolution in 1775–76. The main theme of the book is that when the different colonies were initially founded, they followed very different law—typically not the common law of England. But over the course of the seventeenth century and first half of the eighteenth century, the colonies all received the common law, with the result that by the 1750s the common law constituted the foundation of every colony’s law and every colony’s political system. Some of the colonies adopted the common law because of pressure from the Crown to do so, but others turned to the common law because of socioeconomic pressures on the ground. During the more than century-long process of reception, the common law gradually changed, and thus, what was on the ground in 1776 was not identical to the common law of England. Rather, it was a body of rules that would constitute a foundation for an Americanized version of the common law.

1. The English origins

2021 ◽  
pp. 7-17
Author(s):  
Amanda L. Tyler
Keyword(s):  
Seventeenth Century ◽  
Common Law ◽  
Habeas Corpus ◽  
Individual Liberty ◽  
Simple Idea ◽  
Magna Carta ◽  
The Common

This chapter traces the origins of the common law writ of habeas corpus, finding that it was born out of a simple idea: the need to serve the king and demand justification for the detention of one of his subjects. It was not so much for those courts to question the king himself, for he could do no wrong. This chapter details how all of this changed over the course of the seventeenth century, and specifically the important role that the English Habeas Corpus Act of 1679 played in this shift. As is also explored, Parliament’s objectives in passing the Habeas Corpus Act sprang from its intention to expand its power at the expense of the king much more so than a desire to protect individual liberty. But in time, Blackstone and others came to praise the Act as a “second Magna Carta” for curtailing the detention of so-called “state prisoners.”

The Republic of Bees

2019 ◽  
pp. 77-126
Author(s):  
Lawrence M. Friedman
Keyword(s):  
Eighteenth Century ◽  
Common Law ◽  
The United States ◽  
State Constitutions ◽  
System A ◽  
The Social ◽  
American Law ◽  
The Common ◽  
The Republic ◽  
Law Of Evidence

This chapter details changes in American law from the eighteenth century onward, covering federal and state constitutions, judges, organization of courts, and civil procedure, and the law of evidence. The colonies declared themselves independent in 1776. However, American law continued to borrow from English law. English doctrines that were needed and appropriate were welcome. Between 1776, and the middle of the nineteenth century, there developed a true republic of bees; their flowers were the social and economic institutions that grew up in the United States. American conditions and ideas were the lawmakers that made American law a distinctive system: a separate language within the common-law family.

Sovereignty and Common Law Judicial Office in Taylor's Case (1675)

2019 ◽  
Vol 37 (2) ◽  
pp. 397-429 ◽  
Author(s):  
David Kearns
Keyword(s):  
Church Of England ◽  
Common Law ◽  
Ecclesiastical Law ◽  
Chief Justice ◽  
Spiritual Nature ◽  
The Common ◽  
English Law ◽  
The Law ◽  
The Church ◽  
Law Making

This essay argues that the 1675 conviction of John Taylor by the Court of King's Bench for slandering God reveals Chief Justice Matthew Hale implementing a model of conjoint law-making between courts, Parliament, and crown that gave pre-eminent power to the common lawyers, and none to the Church of England. In doing so, it counters the prevailing literature on Restoration English law, which has treated the law as hierarchical, with the common lawyers subordinate to the sovereign. Rather than following statute or ecclesiastical law, which emphasised the spiritual nature of crimes like Taylor's, Hale located Taylor's offence in the exclusively temporal common law jurisdiction of defamation, which existed largely outside of monarchical purview. Hale's judgment reflected his rhetoric of judicial office outside the courtroom, where he argued the judiciary worked alongside King and Parliament in making law, but were not subservient to these institutions, for common lawyers relied on sources of law beyond sovereign-made statute. The language of sovereignty as hierarchical was thus a factional attack on an independent common law, an attempt to subordinate the common lawyers to the crown that was resisted by the lawyers like Hale in his rhetoric and exercise of office, and should not ground accounts of the Restoration regime.

scholarly journals The Conceptualization of Constitutional Supremacy: Global Discourse and Legal Tradition

2020 ◽  
Vol 21 (5) ◽  
pp. 904-923
Author(s):  
Graziella Romeo
Keyword(s):  
Common Law ◽  
Legal Culture ◽  
Legal Tradition ◽  
Cultural Resistance ◽  
Legal Context ◽  
Global Discourse ◽  
The Common ◽  
Operational Logic

AbstractThis Article argues that a) constitutional supremacy is affected by the legal tradition, which implies that it is a concept largely shaped by the legal context in which it is elaborated, and b) the common law version of constitutional supremacy determines a sort of cultural resistance to constitutional imperialism. In making its argument, this Article begins with the doctrine of sources of law with a view to unpack its operational logic within the common law and, therefore, to understand how the supremacy of constitutions is conceptualized. It then examines the embryonic conceptualization of constitutional supremacy in the British legal culture by addressing the “constitutional statutes.” It goes on to analyse how constitutional supremacy is safeguarded in jurisdictions that are affected by the British tradition and equipped with written constitutions, to show how constitutions concretely established themselves as supreme laws without neglecting the relevance of traditions pre-dating the constitutional texts. It then shows how the common law finds its way to be applied alongside or even instead of the constitution. Eventually, this Article offers some conclusions as to the implications of such a conceptualization of constitutional supremacy for comparative and global constitutional studies.

14. Deceit

2013 ◽  
Author(s):  
Simon Deakin ◽  
Angus Johnston ◽  
Basil Markesinis
Keyword(s):  
Eighteenth Century ◽  
Common Law ◽  
Economic Loss ◽  
Physical Damage ◽  
False Statement ◽  
Pure Economic Loss ◽  
House Of Lords ◽  
The Common ◽  
Modern Form

This chapter discusses the tort of deceit. The common-law rules concerning liability for dishonesty were synthesised to create the tort of deceit at the end of the eighteenth century in Pasley v. Freeman, and the tort takes its modern form from the decision of the House of Lords in Derry v. Peek in 1889. Most of the cases concern non-physical damage, that is to say, financial or pure economic loss, although the tort can also extend to cover personal injuries and damage to property. The requirements of liability are as follows: the defendant must make a false statement of existing fact with knowledge of its falsity and with the intention that the claimant should act on it, with the result (4) that the claimant acts on it to his detriment.

Common Law Confrontations

2019 ◽  
Vol 37 (03) ◽  
pp. 763-786
Author(s):  
Bernadette Meyler
Keyword(s):  
Eighteenth Century ◽  
New Jersey ◽  
Supreme Court ◽  
Common Law ◽  
Criminal Courts ◽  
Original Meaning ◽  
Late Eighteenth Century ◽  
The Supreme Court ◽  
Late Eighteenth ◽  
The Common

This symposium essay contends that the image of the common law drawn by the Supreme Court in the Confrontation Clause context is both distorted and incomplete. In particular, the Court and scholars defending originalist positions rely almost entirely on English sources in their reconstruction of the common law basis for the Confrontation Clause, thereby neglecting the diversity of American common laws from the time of the Founding, a diversity that has already been unearthed by a number of legal historians. By drawing on hitherto untapped sources to furnish a bottom-up reconstruction of how testimony was treated in local criminal courts within mid- to late-eighteenth-century New Jersey, this essay demonstrates that, in at least some jurisdictions, the originalist vision of common law did not apply. The common law cannot, therefore, furnish a univocal answer to questions about the original meaning of the Confrontation Clause.

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