Shareware Overload Trio 2/Shareware Overload Trio Volume 2 (Chestnut CD-ROM).ISO/dir33/1798_r.zip/COM.LAW

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        Two systems of law have spread over the Western world. CIVIL
        LAW, descended from the laws of the Roman Empire, is used by
        most European countries.  COMMON LAW, descended from the common
        law of England, is used in the United States and most of the
        Commonwealth countries.  Both systems of law resist simple
        definition.  Unlike civil law, common law was not embodied in
        a text or code.  Rather, it evolved case after case in court
        decisions;  the common-law judge did not consult an official
        text before rendering his judgment, but drew instead upon
        precedents established by other court decisions.

        DEVELOPMENT OF COMMON LAW

        Common law developed in England after the introduction of
        FEUDALISM following the Norman Conquest (1066).  In feudalism
        the monarch was the supreme landlord.  All title to real
        property was ultimately traced to the crown.  The king made
        land grants to the great barons, who in turn made grants to
        their own retainers, or vassals.  Each grant created certain
        obligations for both tenant and landlord, and private courts
        were created to oversee the performance of these duties.

        On the lowest level, every manor had a manorial court with
        jurisdiction over the manor's serfs.  On a higher level, the
        great barons provided honorial courts to settle disputes among
        their vassals, or KNIGHTS.  The principal concern of such
        courts was the land grants that the vassals received in return
        for military service:  the courts oversaw the rules of
        inheritance, marriage, and other matters that pertained to the
        land grants.

        The King's Court

        At the head of the system of courts was the king's court, curia
        regis, founded at Westminster by WILLIAM I (r.  1066-87).
        Originally an advisory body of the barons, it developed
        legislative and judicial functions.  From the former emerged
        Parliament;  from the latter, the royal court system.
        As the power of the king gradually increased, the great barons
        played a lesser role in the curia regis.  The king relied
        instead on a smaller, more specialized set of advisors within
        the curia.  With the help of these advisors the monarchs,
        especially HENRY II (r.  1154-89), sought to curb the power of
        the great barons by replacing local private law with a common
        law for the entire country, namely, the king's law.  In
        extending royal justice the curia regis was aided by the
        continued existence from Anglo-Saxon times of the shire, or
        county, courts.  Beginning in the 12th century, these local
        communal courts were visited at roughly 7-year intervals by
        royal judges sent from Westminster on a set route or eyre (from
        the Old French eire, a circuit).  Royal justice was made
        available to a vast new segment of the population, and at these
        hearings, as well as at the court sessions in Westminster,
        began the court decisions, or precedents, that form the basis
        of common law.

        The Jury

        One of the tools of royal justice was the JURY, which could
        only be summoned by royal authority.  In 1166, Henry issued the
        Assize of Clarendon, initiating a procedure by which jurors
        were commanded to appear before a royal judge and relate any
        knowledge they had of crimes or criminals in a given area. This
        sort of presentment jury became widespread thereafter. Later
        Henry instituted a procedure called the grand assize to
        determine which of two or more claimants had the better right
        to a piece of land.  Four knights elected twelve jurors who
        were acquainted with the facts of the case and who, after
        visiting the site, informed the court which claimant had the
        better right.  Such procedures proved popular as an alternative
        to judicial combat, or ordeal by battle, which was then used
        in the feudal courts.

        Writs

        The royal court exerted its authority by issuing WRITS, or
        written orders in the king's name, requiring some action to be
        taken by a defendant or by a local court.  An early treatise
        on law compiled by Ranulf de Glanvill (d.  1190), the chief
        justice of the later years of Henry's reign, gives "the writ
        for making the first summons." Later this was called the writ
        Praecipe (command), from the first word of the Latin formula.

           The king to the sheriff, greeting.

           Command N.  to render to R., justly and without delay,
           one hide of land in such-and-such a vill, which the said
           R.  complains that the aforesaid N.  is withholding from
           him.  If he does not do so, summon him by good summoners
           to be before me or my justices on the day after the
           octave of Easter, to show why he has not done so.  And
           have there the summoners and this writ.

                Witness Ranulf Glanvill at Clarendon.

        The king's court had become three courts by the 13th century:
        Common Pleas, King's Bench, and the Exchequer.  During the 12th
        and 13th centuries, the justices issued literally scores of new
        writs to settle issues before the court.  A plaintiff at one
        of the local assize courts could present to an itinerant
        justice his plaint or grievance as a "bill in General Eyre."
        If successful, he could obtain a trial of his case.

        Actions

        In addition to new writs, principally in common pleas
        concerning land, new personal actions appeared, such as the
        action of account, which was used at first by a lord to compel
        his bailiff to account for the manor's profits.  Later the
        action of account was used against a person who had received
        money to be used for the benefit of the plaintiff.  Another
        important action was trespass, which called upon a defendant
        to show why he had caused damage to the plaintiff.  The action
        of trespass developed into several actions including trespass
        to the person, to goods, and to land. Leaseholders acquired
        their own version of trespass, called ejectment;  a tenant
        could demand to know why he had been ejected from his lease or
        term before it expired.

        Society is always changing, and sooner or later law must change
        to provide new rules and remedies.  A more or less standard
        example of the manuscript collections of writs was printed in
        1531, and thereafter printed editions of the register guided
        lawyers in the drafting of writs until 1833, when forms of
        action were largely abolished;  by 1875 they were completely
        abolished.

        The common law was not entirely confined to writs.  The king
        in council might also issue statutes restating or amending the
        decisions of the courts.  EDWARD I is remembered for his
        Statutes of Westminster (1275 and 1285) and the Statute of
        Gloucester (1278).  The second Statute of Westminster dealt at
        length with land and inheritance;  it also encouraged the
        creation of new writs to provide remedies in cases where no law
        existed.  "Whensoever from henceforth it shall fortune in the
        Chancery, that in one case a writ is found, and in like case
        falling under like law, and requiring like remedy is found
        none, the clerks in Chancery shall agree in making the writ."

        RECORDS OF CASES

        The records of actual cases tried in the courts of Common Pleas
        and King's Bench are the best evidence of the activity and
        continuity of the common-law courts.  The Public Record Office
        in London contains vast quantities of such records;  many of
        the bundles have never been opened. The case records contain
        details about the cause of action, the names of the litigants,
        and the decision of the court.  The records show that as common
        law became more technical in the 14th century, a body of
        professional lawyers arose, trained in the complexities of
        pleading cases in court. The first steps toward reporting cases
        were made in puzzling compilations called Year Books
        (1292-1536).  They usually stated the grievance of the
        plaintiff and the answer of the defendant, followed by the
        arguments of counsel and, sometimes, the court judgment.
        Before the invention of printing in the mid-15th century, it
        was not unusual for lawyers to cite several cases to try to
        establish the traditional use of a certain rule in like cases.

        A ruling in a single case, however, was not an authority
        binding the court.  The appearance of Burrow's Reports about
        1750 marked the advent of something like the modern form of a
        court report.  These reports made a clear distinction between
        the facts of a case, the arguments of counsel, and the judgment
        of the court, and provided at least an outline of the reasoning
        upon which a decision was based.

        EQUITY

        The common law administered in Common Pleas and King's Bench
        lost its flexibility at the end of the 13th century. Plaintiffs
        began to petition the king for remedies, and the chancellor had
        the task of properly disposing of their requests.  By the end
        of the 14th century, the chancellor was presiding as a judge
        in his own court of Chancery, and a branch of the law called
        EQUITY began to grow as a supplement to common law.

        The work of a court of equity was easily justified by the
        argument that rules of law must of necessity be general, but
        that circumstances are infinitely variable and require that in
        some cases the strict letter of the law be set aside to avoid
        injustice or a result contrary to reason. In various ways
        Chancery developed a character of its own.  A brief comment on
        the final decree in Chancery may illustrate a difference
        between common law and equity.

        The judgment of a common-law court was either for the plaintiff
        or for the defendant:  one party won, the other lost.  But in
        an equity court the plaintiff might secure a general relief
        recognizing his rights and at the same time be asked to fulfill
        some obligation to the defendant.  A decree in equity could be
        drafted to secure the relative duties and rights of the parties
        in line with the maxim, "He who seeks equity must do equity."

        At the beginning of the 16th century, the Chancery was
        supplementing rules of common law to arrive at results in line
        with a doctrine of conscience. An important writing for this
        formative period was the dialogue Doctor and Student by
        Christopher Saint-German (c.1460-1540).  "Equytie is ordeyned,"
        the Doctor says, "to tempre and myttygate the rygoure of the
        lawe .  .  . and so it apperyth that equytie rather foloweth
        the intent of the lawe then the wordes of the lawe."

        So long as common-law courts were inflexible about matters of
        wills or trusts and uses of land and contracts without a seal,
        equity courts filled a need.  In Chancery a mispleading was not
        fatal, and in cases where no remedy existed at common law, the
        Chancery was free to act by what was called the law of right
        and conscience.  EQUITY SUPPLEMENTED THE COMMON LAW;  IT DID
        NOT CONTRADICT IT.

        Of the greatest importance for an Englishman's rights in
        property was Chancery's enforcement of trusts and uses.  For
        example, if A grants property to B to hold for the use of C,
        the common law would take B to be in seisin of a freehold;  but
        Chancery would protect the interest of C, the beneficiary.
        Chancery was also responsive to complaints about fraud and
        deceit.  In the administration of estates of the deceased and
        the development of equitable interests in property, Chancery
        courts made significant contributions to law in England.

        At times the coexistence of courts of law and equity seemed to
        give English subjects two kinds of justice, and from the 17th
        century onward reformers urged that English law and courts be
        simplified.  This finally came about in 1875, when a single
        high court of justice was created. Other reforms abolished the
        writ system.  In the United States during the 19th century the
        majority of state constitutions provided for one action at law
        and equity.

        EXPANSION OF THE COMMON LAW

        Common law crossed the Atlantic with the English language and
        served English colonial settlements whenever conditions
        permitted.  Occasionally it had to yield in favor of religious
        beliefs or local customs.  Judges in early America often lacked
        professional knowledge of the law;  to be a man of property
        respected in his own community was sufficient qualification for
        the bench.

        Prior to 1776 a few colonists went to England for legal
        education at the Inns of Court.  The victory of the colonies
        in the American Revolution did not result in a rejection of
        English common law;  however, the attitudes of individual
        Americans toward common law were full of contradictions.  At
        one extreme were men like John Dudley, associate justice of the
        Supreme Court of New Hampshire (1785-97), who believed that
        "common sense is a much safer guide for us than common law."
        He boasted that he had read neither Blackstone nor Littleton,
        and never would.  At the other extreme was George WYTHE, law
        tutor to Thomas JEFFERSON and the first professor of law at the
        College of William and Mary.  Among his students were John
        MARSHALL, James MONROE, Edmund RANDOLPH, and Henry CLAY.  Wythe
        used Blackstone as a textbook, and his lectures compared
        English and Virginia law.

        In the United States in the early 19th century, lawyers faced
        considerable hostility and suspicion.  On one hand, the public
        demanded codification of the law as a means of achieving
        simplicity and certainty.  On the other hand, it sought to
        democratize the profession of law by removing educational
        requirements for a license to practice.  The latter proposal
        was actually put into effect in New Hampshire (1842), Maine
        (1843), Wisconsin (1849), and Indiana (1851).  In these states
        any person could practice law who was a citizen more than 21
        years of age, or a resident of the state, or a voter "of good
        moral character." It was argued that a citizen had the natural
        right to earn a living in any business, profession, or calling.
        Moreover, the abundance of open land profoundly affected
        American society, producing a fairly equal distribution among
        many landowners.  On the frontier it was easy to conclude that
        common sense was enough.

        Inevitably, the development of law in the United States came
        to reflect much that was distinctive in the American
        environment. For example, very early in the history of the
        United States, American jurists favored the recognition of so-
        called common-law marriages.  James Kent stated, in Fenton v.
        Reed (1809), that "A contract of marriage per verba de presenti
        {words in the present tense, for example, "I do."} amounts to
        an actual marriage, and is as valid as if made in facie
        ecclesiae {in church}."

        Free consent, the meeting of minds, made a valid contract.
        Kent's opinion was almost universally accepted.  On the
        frontier, where churches were few and ordained ministers
        scarce, common-law marriage was expedient. The Married Women's
        Property Act of 1875 and statutes of state legislatures gave
        an American wife control of her separate earnings.  This
        legislation broke up irreparably the older common-law doctrine
        of the unity of husband and wife, a doctrine that had given the
        husband control of his wife's property.

        American legal reformers also sought to replace laws created
        by judges with legislation in broad areas.  The 19th-century
        jurist David Dudley FIELD drafted a civil procedure code, a
        penal code, and a criminal procedure code that were adopted by
        New York State and widely copied elsewhere.  A Uniform
        Commercial Code has been adopted by every state except
        Louisiana, which has a civil-law system reflecting its French
        tradition.

        Although there are many differences between English common law
        and American variations on it, the legal system of the United
        States bears many important marks of the common law.  The
        professional language used by American lawyers is understood
        in Great Britain.  Printed reports of U.S. cases show that
        courts have applied and still apply the doctrine of precedent
        (Stare decisis) associated with common law.  Rules of equity
        supplement the common law in Great Britain, and an action at
        law and equity is used in the United States.

        In the United States, persons who fear that they may be
        deprived of their rights will demand "due process of law" and
        an observance of "the rule of law," principles essential to
        common law, and juries are judges of the facts in important
        cases.  The United States thus remains one of the common-law
        countries.

        CIVIL LAW

        Civil law, or code law, is the system of rules, courts, and
        procedures used in the legal systems of certain Western
        European countries and their offshoots in Latin America, Asia,
        and Africa.  These systems are distinct from the COMMON LAW
        systems of English-speaking countries. However, it is not easy
        to briefly characterize the difference, but the attempt will
        be made.

        Civil law is customarily said to be based on ROMAN LAW.  The
        difference between civil law and common law systems, however,
        is not simply the result of Roman influence. Civil law systems
        also show varying degrees of influence from GERMANIC LAW and
        ecclesiastical, feudal, commercial, and customary law.
        Moreover, noncivil law systems, such as the English legal
        system, were also heavily influenced by Roman law in the
        systematization of the law of CONTRACT.

        It is specifically the authority given to the Corpus Juris
        Civilis of the 6th-century Byzantine (East Roman) emperor
        JUSTINIAN, and not merely Roman influence, that distinguishes
        civil law systems.  (The term civil law is also used to mean
        private law, for example BUSINESS LAW, as opposed to public or
        criminal law.)

        THE INFLUENCE OF JUSTINIAN LAW

        The Corpus Juris Civilis was promulgated in 533-34.  A
        codification of 1,000 years of Roman law, it consisted of three
        main parts:  the Institutes, an introductory textbook;  the
        Digest, a compilation of extracts from classical jurists;  and
        the Code, a collection of later imperial legislation.  The
        Institutes has been particularly influential. From the 16th
        century onward it was revived as the main introduction to law
        for European students.  To some extent it continues to be so
        used. The emphasis placed on this work led inevitably to the
        idea that modern law could also be set out briefly and
        authoritatively, and in this way it influenced the development
        of modern law codes.  Codification is now a typical feature of
        a civil law system.  (Some scholars even take it to be the
        distinguishing feature).

        Modern codes tend to have a structure similar to that of the
        Institutes. They generally exclude the topics not dealt with
        in the Institutes, such as evidence, procedure, mercantile law,
        and public law.  They tend to be similar to the Institutes in
        length and in amount of detail.

        In civil law countries the study of the Corpus Juris Civilis
        has influenced habits of legal thought and techniques,
        including attitudes to legal rules, legal classifications,
        courts, and precedent.  There has been a corresponding academic
        neglect of local customary law in these countries.  In France,
        for example, customary law was not taught in universities until
        1689.  The emphasis in Justinian's Institutes was on the
        authoritative explication of the law, and thus in civil law
        countries the academic jurist has relatively high prestige
        compared to the prestige of a court judge.

        Precedent -- the making of law by judicial decisions, as in
        common law -- could have no place, or only a very limited
        place, in a civil law system.  Even in those modern civil law
        systems that recognize a legal force in precedent, much less
        interest is accorded to the detailed facts of the case than in
        the common law.

        Academic explication of the law stresses rules and principles;
        thus in modern civil law cases the decision must be based
        clearly on rules and principles embodied in a code or statute.
        This makes civil law more accessible to the lay-person than
        common law.  Systematic academic treatises or monographs are
        also valued more highly than they are in common law.  The
        academic study of Roman law that began in Bologna in the 11th
        century has been the core of civil law systems.

        The influence of Roman law on modern civil law is most apparent
        in the structure and divisions of the law:  the sharp
        distinction between public and private law found in Roman law
        exists today in civil law countries.  Basic concepts such as
        contract, delict, possession, and ownership, and the substance
        of the law of contract and of individual contracts all show
        Roman influence.  On the other hand, some parts of modern
        substantive civil law are largely free from such influence;
        these include law related to matrimonial property and
        acquisition of land ownership, mercantile law, and labor law.