PANEL: Common Law and Church Courts
Saturday, October 24, 2:00-3:30
Chair: Victoria List, Department of History, Washington and Jefferson College
Conceiving the Reformation: The Statutes of 1529 and the Exercise of Power in the English Parish
Robert C. Palmer, Department of History and Law Center, University of Houston.
In 1529 the English Parliament passed a series of statutes regulating clergy that worked an immediate change in parish dynamics. Historians have uniformly dismissed the statutes as ineffective, but that analysis has been based on faulty conceptions of the dynamics of both legislation and litigation. Litigation patterns from the late fourteenth century to the 1540s indicate a thorough commercialization of the parish in late Medieval England that interfered with episcopal supervisory power and disassociated religious dues from the provision of religious services. The 1529 statutes dramatically reversed that situation in ways that endured and that likewise produced an entirely different dynamic in the exercise of power within the parish.
Writs of Prohibition and the Church Courts during the Reign of Edward I
David Millon, School of Law, Washington and Lee University
Abstract: The writ of prohibition commanded in the king's name that a case in an ecclesiastical court cease immediately because jurisdiction over the matter at issue properly belonged to the crown. If the church court disobeyed the prohibition, the defendant could commence an action in a royal court aiming to hold the ecclesiastical judge or suitor accountable. My paper focuses on two aspects of prohibition procedure during the reign of Edward I (1272-1307): the availability of writs of prohibition solely on the church court defendant's unverified, unsworn allegation of a jurisdictional intrusion, and the availability of proof by wager of law (compurgation) in common law actions based on disobedience of prohibitions. Royal officials devised remedies for problems created by each of these procedural features. After discussion of the problems presented and their solutions, I conclude with some remarks suggesting that the approach to law reform exhibited in these examples was characteristic of the premodern common law system's general stance toward legal improvement and innovation.
The Becket Conflict and the Origins of Crown Jurisdiction over Usury
Robert Stacey, Department of History, University of Washington, Seattle
Comment: James A. Brundage, Department of History, University of Kansas
In 1916, Elihu Root complained to members of the New York bar that "fifteen per cent of the lawyers of this city are foreign born," and he added that "Fifty per cent of the lawyers of this city are either foreign born or of foreign born parents." This paper examines who some of these "foreign born" lawyers were, where they worked, and who hired them. Specifically, it looks at Italian and Jewish immigrants, immigrant lawyers, and practices of personal injury litigation in early twentieth-century New York City.
The paper is part of a larger story about how established New York attorneys fixated on identifying "duties" in and outside of legal institutions and how Italian and Jewish immigrants resisted their efforts. This paper represents an important component to that study because it describes how through the practice of personal injury law immigrants and their attorneys articulated experiences of pain and suffering in legal terms. Immigrants thus practiced a kind of everyday law which they and their attorneys claimed could be rightfully demanded -- not dutifully avoided -- and in that development lurked a figuration of the self as being capable of legal representation, as bearing rights.
The sources of this paper include newspaper accounts, legal cases, and memoirs of notable attorneys, but also critically-examined records of claims agents working for railroad, streetcar, and subway companies. Using these materials, the paper revises our understanding of the history of "ambulance chasing" by situating the practice of tort law outside questions of professional ethics and examining its deeper social and cultural significance.
Progressive Legal Outreach and the Contact
of Legal Cultures in New York City, 1896-1925: The Case of the New York
Legal Aid Society
Derek Krissoff, Department of History, SUNY Buffalo
Leaders of New York's German community joined with concerned members of the local legal establishment to found the New York Legal Aid Society late in the nineteenth century. Then, as now, Legal Aid was designed to provide the poor with legal representation, but in the first three decades of its existence the Society had a related, and intriguing, agenda; it sought to lure recent arrivals to the United States into the legal mainstream. Legal Aid operatives acknowledged that alternative modes of legal and quasi-legal thought and practice -- many of them rooted in extralegal forums for dispute resolution -- flourished in ethnic New York. By encouraging newcomers to consult Legal Aid when they became embroiled in conflicts, the Society hoped to reign in this intellectual and institutional sprawl. Immigrants would, it was hoped, begin to conceive of themselves as formally "legal" actors oriented around the courts.
And yet Legal Aid was not simply an imperialist venture intent on reconfiguring outsiders' beliefs about social order. Practical concerns kept the vast majority of cases out of court, and in lieu of litigation the Society's lawyers developed a method of dispute resolution which consisted of calling both parties together, conducting an "impartial" investigation of the facts, and hammering out a solution. The system of arbitration Legal Aid embraced was not adversarial; in this respect it more closely resembled rabbinical courts, mutual aid societies, and boards of conciliation developed in the garment industry than it did the system of civil courts. It therefore seems fair to describe the relationship between Legal Aid and the immigrant community as one in which influence and power flowed in both directions. I conclude by suggesting that the New York Legal Aid Society was one of severable permeable points of contact between Progressive-era cultures of dispute resolution, and that through the study of these forums historians might construct new models to explain legal change during this period.
Northern Urban Black Lawyering in the
Early to Middle Twentieth Century: Raymond Pace Alexander's Self-Fashioning
Kenneth Mack, Department of History, Princeton University
This paper is a portion of a larger study of the professionalization of Northern, urban black lawyers in the early to middle part of the twentieth century. The larger study analyzes black lawyers' oft-stated vision of their professional mission -- civil rights advocacy -- and its relation to the quotidian world of law practice in which they found themselves, focusing on Raymond and Sadie Alexander, a husband-and-wife team of black lawyers who practiced in Philadelphia.
Civil rights was not a self-evident concept for early to mid-twentieth- century black lawyers, but rather was an idea that was given substance by these lawyers' law practices and professional activities. In the 1920s black lawyers began to solicit a regular clientele among the growing urban African-American populations in cities like Philadelphia, and by the 1930s had organized themselves into local and national bar associations and had gained accreditation for the largest source of black lawyers, Howard Law School. By the first decade after World War II, a number of black civil rights attorneys, including Charles Houston, Raymond Alexander and Thurgood Marshall, had become influential figures in postwar liberal politics.
The paper will focus on the early decades of Raymond Alexander's law practice in the 1920s, 1930s and 1940s, and his initial conception of his role in the legal profession and in Philadelphia's black community. Using Alexander's autobiographical writings, magazine articles and materials from his early cases, this paper will analyze Alexander's self-conception as a lawyer in the period, the roots of that conception in the social conditions of an early twentieth-century urban black lawyer, and how and why that conception changed over the course of the first several decades of his law practice.
Comment: Robert W. Gordon, Yale Law School