Today’s Lecture: Common Law, Courts & America 1. Law in Rome 2. The Development of Courts and Common Law

Today’s Lecture:

Common Law, Courts & America

1. Law in Rome

2. The Development of Courts and Common Law

Lecture Organization:

• Class Announcements

• Review

• England and the High Seas

Time

• Formation of Two Party System

• Very Damn Big Important Conclusions

• Violations of the Chain of Being

• English Revolution

• Financial Revolution

Class Announcements

Online Lectures

-- Slight delay. Posted this week

Class Participation

Multiple-Choice Questions

-- There will be a policy change announced today

-- point system for each type of question will be different.

(true false, multiple choice, book or lecture)

-- Please don’t forget to drop comments in the right box

-- we won’t be briefing cases for at least another week

Questions?

First Quiz Posting

Forgetting Attendance Sheet

-- Looks like next Monday

-- multiple choice questions should be given to me by Thursday at the latest.

-- Let me know when that happens

-- please sign for both dates

Class Announcements

Time

Review

Medieval European political order

-- Chains of being, divine right

-- Feudalism, Lords, social rank and social deference

-- Illiteracy, and the church supporting the politics

The beginning of a new day

-- Enlightenment thinkers writing in Europe

-- protestant reformation

-- religious sects breaking out all over England

-- Puritans, Presbyterians, Quakers, Congregationalists, Baptists, hand many, many others

Significance of religious reformation

-- Tearing down oligarchic and monarchic authority structures

• against Popes, Bishops & Church of England

• wanted local control of churches and in some cases Congregationalist churches

•Some wanted all authority torn down – even the Bible itself

Review

Significance of political and scientific writings

-- Social contract theory

• society as a legal relationship rather than as a Garden of Eden story

• society as a piece of social engineering

• the King can be removed if he doesn’t protect the inalienable liberties

-- Newton

• The universe isn’t part of a metaphysical story about the home of angels and God – it is about the subject of physics

• it’s a machine; its governed by laws of natural-science

Review

Parliament has risen in power

-- called into session by the King more frequently

-- has a more important role in English governance than before

Review

Time

England and the High Seas

She was harder to Conquer

-- England is an Island

-- Several things result from this:

-- Although people had successfully conquered the island (e.g., Norman invasion) , as a general rule, it has been difficult for foreign invaders to cross the English Channel

English had to master the high seas

-- For England to have contact with the outside world, it had to become sea worthy

-- would develop an impressive merchant marine and navy

The Benefits of Trade

-- In the middle ages, Europeans began to realize that they could get rich trading with coastal ports in other countries (India, South Africa, etc.)

-- (quote)

-- The English would soon follow suit. Profitable trade with India and other countries (including north America)

Trading with India

And in 1498, the protégées adventurer Vasco Da Gama brought a Portuguese fleet around Africa and directly to India. The goods in cargo that De Gama returned to Portugal with netted him a profit of 600%.


Pirating & Spain

-- English “privateers” were also pirating Spanish ships and illegally trading with Spanish territories in what is now Mexico and portions of South America

Explain colony trade rules

-- colonies cannot trade outside of their network

-- If Spain conquered you, you could only deal commercially with them

-- England was not, in theory, allowed to trade with any of Spain’s possessions, unless Spain authorized it.

-- But they did anyway, and they also pirated Spanish ships


Defeat of the Spanish Armada

-- England was involved in a war with Spain, largely because of the pirating

-- at the time Spain was thought to be the strongest empire on the planet

• first into the “new world,”

• had conquered what is now Mexico, Latin America, Peru, South America

• subjugated the native peoples there are were reaping huge amounts of gold

(One of the reasons the English wanted into the game)


Defeat of the Spanish Armada

-- England surprisingly defeats the invading Spanish armada in 1588

• 130 ships, 30,000 men try to invade England by seaStunning defeat

-- England now has a virtual monopoly on the high seas (most powerful navy on the globe)


Port Towns Develop

-- In the 1500s and 1600s, the port towns in England begin to really develop

-- That’s where the trade goods are coming in and out

-- There are good paying jobs there (unloading ships and so forth)

-- There are stores, merchants, coffee houses, lodging, etc., that develop

People in port towns are starting to make serious money


Population boom

-- plagues had stunted English and European populations at various times in the middle ages.

-- but now, England has a population boom and, seemingly, not enough work for them in the countryside on the landed estates of the noble.

-- Many people head to the port cities

Urbanization

-- By 1650, London will have 350,000 people. 1 million by 1800.

(By contrast, colonial America’s largest unit was about 30,000 in 1760s – Boston or Philadelphia)

Cosmopolitan character


Time

Violations of the Chain of Being

-- Throughout the middle ages, various things would happen that would violate the chain of being

• e.g., the King dying without an heir

• (or a contest about who is the rightful heir)

--Disputes like these were settled usually around some ritual of conflict with Peers siding one way or another.

-- They were technically violations of the chain of being to the extent that they represented a political selection of a leader through the ritual of conflict

-- But these were small scale in terms of what was coming. As England began to evolve, social change would seriously threaten the social order

People getting rich in the port cities

-- people of lower social rank were sometimes becoming more wealthy than noble aristocrats

-- the landed elites were making their money the old European way – land, agriculture , serfdom, etc. (sheep herding and wool production was a major crop)

-- now, however, sailors, merchants, and traders were making good money

-- started to become a threat to the hegemony of the landed countryside

-- at first, people would largely “hush this up.” Later on, cities began to develop their own chains of being. (explain)

Sailors and Capitalists Getting Rich

People who lived in seaport towns are going to have an interesting discovery: (1) Economic trading could make you prosperous; (2) you could sail to certain places, buy goods in bulk – like tea – and you could sell it to your countrymen. And it didn’t matter what your last name was. Sailing was a like being a smith; regular people did it


The monarchy would sell titles of nobility

-- English Kings would need money for wars and other needs

-- size of the treasury determined the monarch’s power (patronage, etc).

-- Kings occasionally would sell titles of nobility (e.g., Earl, Barron ,etc) to someone who could afford to buy it.

-- Violated the chain of being (not supposed to be that way)


Time

The English Revolution

Charles I is Beheaded

-- Charles I is beheaded in 1649 – publically executed

-- Cromwell and “a protectorate” rule for a period of years

(explain the “Rump Parliament”)

-- Conservative Lords are also on the “outs.” This is largely a middle class revolution involving the Gentry, who are rising up in English politics to take control of it.

-- England goes through a period of immense cultural transformation in the 1600s

-- They will rise up and do something that was unthinkable and subject to damnation in the earlier centuries – they will behead their King

English Civil Wars –

1.Supporting the King: Most nobles, some gentry, high Anglicans and Catholics, and the north and west

2.Supporting the Parliament: most Gentry, some nobility, puritans, and the south and east

-- But they move too fast. The change is too liberal

(plural executive, appointed by Parliament)

-- So they ask Lord Cromwell to administer the Realm from from 1653-1660

-- then, they decide to bring back their kings

Charles II and then King James II (1660)


Radical England?

IN 1649, the Rump parliament established a republic, the Commonwealth. There followed a period of experimentation and relative political, social and religious freedom. Benefitting from a free press and greater religious toleration, radical groups “came out of the woodwork.”

--Bucholz

Religious Views

1.Baptists – delay baptism until adulthood (implied freedom of choice)2. Seekers – went from congregation to congregation seeking a permanent home3.Diggers – believed that the Bible did not sanction private property. They established communes. (This idea was not popular with the landed classes)4.Ranters believed that, to the pure, nothing was sin unless the person conceived it as such. Rationalized all forms of debauchery.5.Quakers – believed people contained God’s inner light in equal measure. (implied equality). Refused to swear oaths, tip caps, give the wall, etc., to their social superiors6.Fifth Monarchy Men believed that the Bible had foretold five great monarchies on earth. Four had already fallen and the fifth was King Jesus. To prepare the country for it, you needed to impose Mosaic Law on the country

-- But the Kings don’t work out.

-- So they ultimately do something monumental:

• The parliament gets rid of James and names William of Orange to be the kind

Not in the line of succession!

Parliament is simply naming the King


The reign of William and Mary

-- William and Mary ascend to the throne by an act of Parliament

Parliament was now permanent

The King was bound by acts of Parliament

English Bill of Rights

English Bill of Rights

• -- can’t tax the people without parliament’s approval• -- no detention of citizens without cause shown• -- no military in the private homes• -- limitations on when Martial law could be declared• -- King did not have the power to “suspend law”• -- No excessive bails, cruel-and-unusual punishments• -- jury trials in criminal cases (and other process)


Declaration of Rights

At the time William and Mary were presented with the Crown, they were presented with a Declaration of Rights, which stated that no king of England could tax without parliamentary permission, use the suspending power or abuse the dispensing power, manipulate the judiciary or continue a standing army without parliamentary permission,

Several Important things to keep in mind

Constitutional Monarchy

-- There is still a King, and a line of succession

-- But the King is bound by statutory law, which is now the province of the Parliament

-- The King has a veto, still has patronage, can still prorogue

-- But cannot pass any laws without Parliament’s approval. Can’t go to war; can’t tax; can’t do this or that.

(Note: William never admitted this, but he behaved)


Several Important things to keep in mind

The Bill of Rights is Statutory

-- There is no actual “Constitution”

(Constitution means the “the power sharing relationship that the leaders understand exists, and which is written down in important statutes)

(this idea is completely foreign to Americans)


The Financial Revolution

-- England invents finance capitalism!

-- The historical setting:

Joint Stock Companies

-- How they work

-- How used to settle America

England’s Need for Money

-- Recurring warfare (Scotland, Ireland, France – and sometimes Spain)


The English National Bank

The old way of financing war

-- simply confiscate what you need from whatever gold or resources your subjects possess

-- England invents a new way …

-- instead of confiscating the money, they decide to borrow it.

How ??? – Creating a Bank of England and borrowing against their future (deficit spending)

04/19/23 Copyright, Sean Wlson. 2007 27

Bank of England

Savings

Purchase

Bank Note or “bond”

1. pays interest

2. some risk involved

3. Notes were like money in the economy


Bank of England

borrowing

Loan

Note

1. pays interest (profit)

2. not as much risk

3. debtors prisons, foreclosure


Bank of England

investment

purchasing

Stock

1. Might pay share of profits?

2. More risk! Stocks go up and down (gambling)

3. What else can you do with excess money?

You can buy stocks in any corporation – including the Bank of England

Stock trading in the coffee houses


The King’s Government

Bank of EnglandLanded Elites

Sea-Merchants Corporations

imports

Ordinary workers

Traditional Revenue SourcesConfiscate what he needs?

deficit spending

Loan

“Credit card payment”

Basic Tax Revenue


The English National Bank

The old way of financing war

-- simply confiscate what you need from whatever gold or resources your subjects possess

-- England invents a new way …

-- instead of confiscating the money, they decide to borrow it.

How ??? – Creating a Bank of England and borrowing against their future (deficit spending)

Quotes…

National Bank – England created the Bank of England. It acted as a private bank. It made loans and received deposits. It was an investment opportunity for subscribers. It loaned money to the government and in fact would become the government’s principal lender, and acted as something of a federal reserve. It could print notes, and that helped to regulate the money supply. This system allowed England to have 4 million pounds a year in spending available to them. The British army grew to 76,000 by 1697, more than double that of James the 2nd. The central administration of the army would triple in size from about 4,000 to about 12,000 officers between 1688-1725. The financial revolution has changed England. It is becoming a wealthy empire with the strongest fighting force. It’s bureaucracy is starting to become more professionalized. In order to secure approval for the financial revolution, William had to make parliamentary concessions. national debt was now permanent and news was of raising money (budgeting) had to constantly be looked at, Parliament is now a permanent part of govt.

National Debt –

England invented the idea of creating English-funded national debt. If you look at government records, England’s national debt actually begins in the 1690s. It works like a market transaction. If you are a merchant and you have money, what else are you going to do with it? You make an investment. You can lend the government money and in exchange you get an annuity (interest on the loan paid to the lender). The bonds offered here were at 14% interest. You loan the government money and then not only get the money back, but make a profit. The way these bonds worked: if you died, the obligation was over (there was risk; the average life expectancy was 40 years). Also, if the government paid the money back early, that was allowed (analogy: credit card).

The Formation of a Two Party System

-- The social transformation that threatened the old order had political consequences

-- The old order profited from land as a source of power and from the idea of chains of being

-- the new order profited from finance capitalism and classical liberalism

-- this creates a two party system in the country …


Monarchy

Aristocracy

Gentry

Peasants, Serfs

City-dwelling drunks

Social Mobility

Some aristocrats are loosing groundSome Gentry are

gaining ground

higher-level Peasants are doing better

Lower level peasants doing worse – extreme poverty grows.

Something fascinating occursTory

Whig

The English Revolution is a middle-class revolution

Political Parties!


1. new financial institutions

2. letting the people participate more in picking leaders

3. the sovereign was parliament because it was elected.

4. tolerant of religious dissenters

1. liked the old world.

2. chains of being

3. land as power

4. were against modernity – against the wrong believers; against the expanding the vote

5. they were against the new financial institutions

Progressive

Conservative

The Whigs -- The Tories --

JOHN LOCKE;

Whig Revolutionary Writings

-- a few long quotes

The Financial Revolution Completes the Glorious Revolution – Investors became wealthy very fast, as well as government contractors whose goods were purchased with the money. There was a new investor class. It made a new class of men – moneyed men. They were not land owners. They made money out of money. These people were overwhelmingly Whig and were often dissenters. The Tories saw them as parasites. They were making money from the land tax which was going to fund the national debt. And worse, they were making money just from money. They owned no land yet they were taken into the government’s counsels. [Jonathan Swift, the famous writer, notes that “the country gentlemen are now at the mercy of the scrivener, who is a lawyer that receives half of the rents as interest and a mortgage on the whole.” These new practices seem shady and even conspiratorial. Swift writes, “Through the connivance and cunning of stockjobbers [brokers], there has been brought in such a complication of navary and cousinage, such a mystery of iniquity, and such an unintelligible jargon of terms to involve it in as were never known in any other age or country of the world.”



-- another quote

The First Modern Country?Triennial act passed in 1694: requires an election every three years at least. (But he also said that elections were held 12 times from 1689-1715). There are more elections in this period than any other period in British history. Also, there are more contested elections than ever before. Thanks to inflation, more ordinary Farmers qualified for a vote under the “40 shilling franchise.” IN the local towns, each party tried to increase its memberships voting roles by manipulating the local charter. So what would happen is that one party would win and it would go through the borough charters and add its people. The net result is that you are starting to see the expansion of the franchise. By 1722, some 330,000 males had the franchise, which is 5.8 percent of the population, which is maybe a 1/5th or a quarter of the adult male population. This is by far the largest electorate in Europe. The English were the first to extend the right to Vote and the right to say things in print to the citizenry. The right to sack a ruler who didn’t rule them properly. The rest of Europe thought they were nuts. Hence the phrase, the rights of Englishmen. You couldn’t say that same phrase about the rights of a Frenchman or a Russian. England was first.

-- Caveat

Caveat: -- It doesn’t mean it is completely free and open: if one family is dominant in the locality and wanted a certain candidate, you wouldn’t be free to vote for the other guy. Also, remember that if you did have a choice, there was no secret ballot. So if you were a tenant or an employee, people knew how you voted. Voters could also be bribed with free meals, beer or even money. Patronage and birth still played a significant role in social status. The aristocracy and Lords still remained. Also, not every trade or occupation was represented in the House of Commons because property qualifications still kept some from voting


Time

Very Damn Big Important Conclusions

England in early 1700:

(1). Permanent Parliament

(2). Central role for the House of Commons

(3). Party press (Whigs and Tories)

(4). “The Rights of an Englishman”

(5). Significant amount of voting:

Voting – 1. 40 Shilling Franchise2. 1722 – 330,000 males (1/5th of adult males)(5.8% of the population)

The Power sharing configuration

-- Montesquieu

-- England had a government that enlightenment philosophers thought was perfect

-- it was the first machine for governance every created

Very Damn Big Important Conclusions


Monarchy

Aristocracy

Gentry

Peasants, Serfs

City-dwelling drunks

Power Sharing

“Virtual Representation”

Time

Documents

Today’s Lecture: Common Law, Courts & America 1. Law in Rome 2. The Development of Courts and Common Law