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Posts Tagged ‘Edward Coke’

A Brief History of Opinion-Writing Practices from Hale and Blackstone to the 20th Century

In American History, Britain, History, Law, Nineteenth-Century America, Oliver Wendell Holmes Jr. on August 9, 2017 at 6:45 am

This post is adapted from a law review article that may be downloaded here (citations available in the original).  

Sir Matthew Hale and Sir William Blackstone explained that judicial opinions in England traditionally were a source of unwritten law, or lex non scripta, derived from custom and read from the bench but not transcribed in official reports or indexed in a formal corpus.  Judicial opinions began as an oral medium, not a written record.  They were considered evidence of what the law was, but not the law itself.

From the thirteenth to the fifteenth century, opinions were often written down, in French, and compiled in Year Books.  Lawyers began citing opinions—some written, some unwritten—in their arguments before the courts, although there was no systematized mode of citation.  As early as the fifteenth century, lawyers produced abridgements, or digests, to review the state of the law across England.  These sketchy compilations summarized and classified opinions and could be referenced in the courtroom as authority for particular propositions.  During the fifteenth and sixteenth centuries, a comprehensive scheme of methodical and widespread adherence to written precedent emerged gradually by slow degrees.  However, not until the sixteenth and seventeenth centuries did judges and litigants treat opinions as authoritative and binding in a manner that resembled the modern sense of precedent.  The publication of Sir Edward Coke’s Institutes of the Lawes of England over the course of nearly two decades during the early seventeenth century provided direction for both jurists and attorneys who wished to substantiate their arguments with concrete holdings.  Still there were no certified court reporters or verbatim transcriptions; the enterprise of publishing reports or digests was often personal and selective, insofar as reporters often chose to record only cases they liked and to disregard cases they disliked.

From approximately 1600 to 1800, the British House of Lords enjoyed supreme appellate jurisdiction over cases in common-law and equity courts.  During that time, the House of Lords did not publish reports of its decisions, seriatim or otherwise.  Most cases were ultimately determined by intermediate appellate courts, including the Exchequer Chamber, the Court of Common Pleas, and the King’s Bench, which regularly issued seriatim opinions that were transcribed by reporters.  Prior to American independence from Great Britain, appeals from colonial courts went before the Privy Council in England.  The Privy Council reached decisions by majority vote but issued those decisions as unified pronouncements, regardless of dissenting views.  Because all decisions of the Privy Council were subject to the King’s review, and the King, the site and symbol of the law or body politic, could not articulate simultaneous, contradictory positions, the appearance of unanimity within the Privy Council was paramount.

In its early years, after the adoption of the Judiciary Act of 1789, the United States Supreme Court (“the Court”), following the practice of English common-law courts—specifically the King’s Bench—typically rendered decisions in the form of per curiam and seriatim opinions.  The near obligatory practice of rendering written opinions was an American innovation and a departure from the English custom of residual orality.  The fact that the United States Constitution was written perhaps necessitated the textual documentation of judicial opinions in books, digests, and reports.

During the tenure of Chief Justice Oliver Ellsworth (1796–1800), the third Chief Justice of the Court, seriatim opinions became less common and were abandoned during the tenure of Chief Justice John Marshall (1801–1835), who orchestrated consolidated opinions among the justices, much to the chagrin of Thomas Jefferson.  Justices who concurred with the prevailing rationale no longer authored a separate opinion to express their agreement.  Justice William Johnson, a Jeffersonian Republican, was the notable exception, authoring nearly half of the dissents that were produced by members of the Court during his tenure on the bench.  Chief Justice Marshall, for his part, authored most of the Court’s majority opinions, which were issued with the phrase “opinion of the Court” to lend the impression that the justices spoke with one voice.  Collegiality and consensus-building must have been a high priority because, after work hours, the justices resided and dined together in a small boardinghouse on Capitol Hill, away from their families, where court conflicts could have incited personal quarrels.  Abandoning the seriatim mode and dissenting opinions also quickened the publication process; over a quarter of the cases decided by opinion between 1815 and 1835 were published in no more than five days.

The period late in Chief Justice Marshall’s tenure to approximately 1905 involved the rise of dissenting justices.  Chief Justice Marshall himself began to author dissents as the Court increasingly decided cases through majority rather than unanimous opinions.  Dissents proliferated during the mid-nineteenth century and into the twentieth century.  Justice John McLean and Justice Benjamin Curtis authored memorable dissents in Dred Scott v. Sandford.  Forty-eight years later, Justice Oliver Wendell Holmes Jr.’s three-paragraph dissent in Lochner v. New York became one of the most influential legal writings in American history.  Blackstone’s conviction that opinions were evidence of law but not actually law continued to some extent throughout the nineteenth century, yet it had been diminishing since the mid-eighteenth century.  The notion of “caselaw,” or the idea that judicial opinions constituted law, did not gain currency until the twentieth century.  Today it is mostly accepted without question or qualification.

The twentieth century ushered in the era of the “Great Dissenter,” a label that has been conferred on Justice Holmes and Justice John Marshall Harlan.  By the 1940s, most cases involved separate opinions.  Dissents and separate writings are now common.  A jurist’s reasoning and argument typically enjoy precedential effect, but historically, under the English tradition of the common law, the judgment of the opinion was authoritative, and later courts could disregard the analysis from which that judgment followed.  The results of an opinion, in other words, took priority over its reasoning.

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Scene from “A Trial of Recognition,” by F L Light

In Arts & Letters, Britain, British Literature, Creative Writing, Fiction, History, Humanities, Law, Literature, Shakespeare on September 16, 2015 at 8:45 am

Fred Light

A Shakespearean proficiency in meter and rhetoric may to F L Light be ascribed. Nearly forty of his dramas are now available on Amazon, and twenty have been produced for Audible. His Gouldium is a series of twenty four dramas on the life and times of Jay Gould which he followed with six plays on Henry Clay Frick. The whole first book of his translation of The Iliad was published serially in Sonnetto Poesia. He has also appeared in Classical Outlook and The Raintown Review. Most of his thirty five books of couplets are on economics, such as Shakespeare Versus Keynes and Upwards to Emptiness the State Expands.

The Earls of Essex and Southampton are tried together for High Treason before a jury of the noblest peers. Pleading not guilty, they strive in angry and arrant disputation with Attorney General Edward Coke and Francis Bacon. This drama is the third part of an Aeschylean trilogy and maintains the classical form of tragedy in English with seven scenes of dialogue and seven choral performances.

This trial was conducted in Westminster Hall, February 19th, 1601.

Yelverton: Now the Attorney General will speak.

Coke: My lords of courtly justice, chief pronouncers
And primest fathers of preceptive law,
Treason unsettles what is set by God.
Thrones of established exaltation it
Would overthrow. The firmest Tudor fundament
Upon immediate evanescence fades
To nothing should betrayal triumph, come
Upon premeditated compassments
Of power. Therefore to think projected thoughts
Of treason, all in violent mindfulness
For power, is death. And he that strides against
The realm, with royalty striving, must be judged
By the intent transgression of his thought.
Whoever is at arms in his array
Of might amid a kingdomed commonwealth
Founded on authentic ancestry,
Cannot be suffered by the law, perceived
As lawless as usurpers are.

Essex: But sir,
No duke would a defenseless dukedom in
This realm maintain. No helpless earldom would
An earl endure. Their settlements are set
Apart from central pertinence in Whitehall.
By vassalled mightiness they serve the main.
And undefended danger I would not
Support, assured that Lord Grey or Sir Walter Raleigh
Were raising homicides against me. Thus
I am no traitor, here a man traduced
For his defensive force.

Coke: You say, my lord,
In a protective insurrection you
Arose, forfending murder by revolt,
Who would insurgently secure yourself.
But all rebels would dissemble their revolt
Or revocation of regimes. Lord Darcy,
That traitor in the Pilgrimage of Grace,
By wrongful reprobation Thomas Cromwell
Blamed for his rebellion, that he feared
The King’s chief minister would murder him.
And like yourself Sir Thomas Wyatt to check
The Spanish from an English crown presumed
At arms his Protestant resolve, who drew
A proditory rise upon the realm.
But as a culpable defendant he
Was put to death. A guiltier prisoner
Than Wyatt you are who by her Majesty
The loftiest rooms of favor were allowed,
Made Master of the Horse at twenty two,
Admitted to the Privy Council then.
Soon as Earl Marshal of the realm you were
Preferred, and for Cadiz were given high
Command, and by her Majesty’s regard
The Azores’ were your charge. And higher yet
For Lord Lieutenant and Governor of Ireland
Her Majesty’s commission you received.
Beyond this, you had bounteous delectation
In her gifts to you, deemed more than thirty
Thousand pounds in favor. But you for pride
And inconsiderate presumption thanklessly
Repressed your memories of wealth. No man
A more ungrateful appetite, when fed
With grace, could manifest than you, who’d by
The kingliest insatiety consume
Yourself, your loyalty, and your liege. All this
Concerns her Majesty, against whose throne
Your rising throbbed. And though no Britishman
Without applause can of her Majesty’s
Protective justice speak, I must remark
That overmeasured mercy by the Queen
Will bring unmerciful exorbitance
On her. For though inhuman disobedience
Would have disabled England, yet no man
Howso wayward ever, violent ever,
Was crossly racked or tortured overthwart
For his confession. Most of them would make
Their conscientious peace with God. The truth
Came forth with faithful certitude in God,
As true religion can relinquish enmity.
Accordant attestations they conveyed,
Though sifted severally.

Essex: Now your unsifted speech
I’ve suffered, Master Coke, at culpable
Traducements kept before you, by confined
Civility not answering forthwith
The guiltiest allegations laid on me.
With insurrectional salvation might
The realm be saved from priestly sinfulness
Of blameful priests who’d stupefaction stress.

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