The English common law of real property, as S.F.C. Milsom has argued, took shape between 1153 and 1215. The common law gave royal protection to free tenements, replacing feudal relationships as the primary bond structuring society. The law thus constituted the institutional core of the English state. But no Machiavellian monarch constructed the English state. Henry II was, rather, a king who presumed the morality and necessity of feudal relationships. His innovations, though intentional and carefully planned, were directed at narrower and less far-sighted ends. Other changes were the result of bureaucratic action. The complex interplay between present-oriented political or juridical decisions and bureaucratic rigor generated a legal system.

The availability of the literature of the law, an aspect of legal culture rarely considered in twentieth century Canadian commentary on the ‘reception’ of imperial laws, must have had a great deal to do with the way that sources of law informed and reflected the developing jural values, doctrine, and methodology of the British North American provinces. Yet locally-prevalent versions of legal positivism, which find expression in formalistic, contemporary constitutional scholarship on transferral issues, have tended to suppress or render irrelevant inquiries into the way that such intellectual forces as law books actually affected the development of the legal culture of Upper Canada/Ontario.

Until recently, historians of American constitutionalism agreed that, except for the infamous Dred Scott decision, the most unfortunate decisions of the Supreme Court were those that incorporated the notion of laissez-faire into the Constitution in the late nineteenth century. These decisions permitted the Court to frustrate efforts to secure a more just economic order in the United States until the 1930s. The intellectual foundations of laissez-faire constitutionalism have been so alien to most legal scholars since the 1930s (and equally unintelligible to many even earlier) that they have found it difficult to believe these decisions were the result of efforts to enforce ‘neutral’ principles of constitutional law, to utilize the terms of Herbert Wechsler's famous analysis. They could not conceive of the Court's rhetoric about liberty and due process as anything but cant, a subterfuge designed to camouflage other purposes.

Private individuals and voluntary associations have dominated the creation and direction of institutions of health, education, culture and good works throughout most of American history. Notwithstanding the great increase of government activity in these areas during the last fifty years, the extent to which private decisions structure public endeavors continues to distinguish our experience from that of other western cultures. Indeed, the unprecedented accumulation of large amounts of private capital which marked the late nineteenth and early twentieth centuries, and the desire of the owners of that wealth to devote some part of it to ‘benevolent’ purposes resulted in the formation of philanthropic foundations, so large in scope and so immodest in purpose, that they continue today to play a major role in our society.

Very little is known about the young and the orphaned in the villages of medieval England. The span of years constituting childhood as well as the social experiences peculiar to youth must be deduced from either literary sources, including the comments of chroniclers and priests, or legal records generated by coroners, jurors and feudal lords. The variety and scope of this evidence notwithstanding, certain questions about the care of children in the rural world remain unresolved. Did peasants view childhood as a period of protected dependency, and at what age did childhood cease? How did the change in status from child to adult take place? There was, it seems, no public proclamation, no elaborate ceremony or ritual. Instead it appears that children quietly entered the adult world as soon as they no longer were dependent on their mothers and nurses. Indeed the dependency of medieval children now has the semblance of brevity, neither prolonged by families nor subject to broader constraint. But does this appearance fully account for the passage of childhood in peasant society?

The criminals of medieval England are coming under increasing scrutiny. Predictably, the earliest attempts to illustrate criminality in this period have been anecdotal in approach. Predictably, too, the case studies are concentrated at higher levels in society, where criminals or their victims were sufficiently prominent to merit the attention of chroniclers or to leave heavy traces in the more accessible records of central government. Such studies have been useful in reinforcing the impression that organized crime enjoyed distinguished support and participation. For some time Sir John Molyns was able to shelter his persistent offences behind his political connection. Merchants robbed in Cannock Chase in 1341 found prosecution difficult; their assailants were knights from powerful midland families, conducting the robbery from Lapley priory. The Folville gang, led by members of minor landowning families, included various beneficed clergy and the constable of Rockingham castle. The Coterels recruited the sheriff of Nottingham and enjoyed the support of Lichfield chapter. The crimes were also at an exalted level: murdering a baron of the Exchequer, kidnapping a king's bench justice, extortion by threats from a mayor of Nottingham, or from one of the Luttrells. Even William Wawe, an Anglo-Irish thug of indifferent social standing, owes his immortality to the breadth of his operations and his preference for churchmen as victims.

This is an essay about an incident that took place in the Province of Massachusetts Bay during the period 1772–1774, an incident that I will call the Affair of the Royal Salary. Close relative of the Stamp Act Crisis, The Boston Tea Party, even the Boston Massacre, the Affair of the Royal Salary similarly involved a clash between the forces of popular government and those of imperial government; like its better known cousins it is part of the story of the coming of the American Revolution in Massachusetts. In addition, since the Salary around which the Affair developed was intended for judges, the Affair of the Royal Salary is part of the history of judicial independence in Massachusetts.

In its October term 1882, the United States Supreme Court handed down a decision which aborted federal efforts to deal with anti-black violence in the states of the old Confederacy. At issue in the case of United States v. Harris was the constitutionality of a federal statute, Section 5519 of the Revised Statutes of the United States of 1874, which made it a crime for private persons to conspire to deprive other individuals of the equal protection of the laws. A group of white Tennesseeans had been convicted under the statute for assaulting and badly beating a group of black criminal defendants in the custody of local authorities. The court held that there was no foundation in the Constitution for the federal law and voided it, thus overturning the convictions. The 14th Amendment, the purported basis for the statute, was aimed, according to the court, at state action and did not empower Congress to legislate against purely private conduct. It was the same line of reasoning that would lead the court in its following term, in the celebrated Civil Rights Cases, to declare unconstitutional Section 1 of the Civil Rights Act of 1875, which established civil and criminal penalties for racially motivated interference with anyone's full and equal enjoyment of public accommodations and conveyances.

The development of property in England between 1176 and 1220 was the result of a complicated interaction between social mores made law and bureaucratic action. In the Assize of Northampton, Henry II undertook regular supervision of proprietary decisions to prevent his men from preparing a rebellion like that of 1173-74. The supervision assumed peacetime feudal norms, but in the hands of bureaucratic justices even prior to 1200 this supervision increasingly restricted lords' power to discipline their tenants, at a time when disciplinary power was far more important than proprietary decisions. By 1220, the relative importance of proprietary matters and disciplinary power had been reversed. But proprietary action by the lord was so attenuated that seisin—lawful possession—was possible now even without lordly acceptance. Such insulation of the tenant from his lord was a bond established between the tenant and his tenement: property.

From David Daube I learned Roman law and many other things: inter alia that accepted doctrines and approaches need continual re-examination, that research in one field may illumine another, that limitations because of one's background or upbringing, or in one's academic skills affect one's judgment, and that the connection between life and law is more complex than is usually supposed. A paper dedicated to a beloved and revered master may properly strike a more personal—though not less scholarly—note than is usual; especially when the theme concerns tyranny and the recipient has experienced tyranny and withstood it mightily.

A highly symbolic confrontation occurred in a New York City courtroom on October 21, 1918. On the witness stand was Jacob Abrams, a thirty-two year old Russian immigrant, an alien, a Jew, a dedicated anarchist. On the bench sat Henry DeLamar Clayton, Jr., a sixty-one year old federal judge, a man who had represented Alabama in Congress for eighteen years, and who was an ardent Wilsonian progressive. Abrams, who came from Uman, a village near Odessa, had landed at Ellis Island in 1908. He worked as a bookbinder, and lived, in 1918, in a teeming, largely Jewish ghetto in East Harlem. Clayton's ancestors had emigrated to the colonies before the American Revolution. A fifth-generation American, he had lived, for most of his life, on his plantation near Eufala, a small town on the west bank of the Chattahoochee River. Now, Clayton was questioning the witness and Abrams was defending his anarchist beliefs. ‘This Government was built on a revolution’, Abrams said, ‘…When our forefathers of the American Revolution—’ That was as far as he got. ‘Your what?’ Judge Clayton interrupted. ‘My forefathers’, Abrams replied. ‘Do you mean to refer to the fathers of this nation as your forefathers?’ Clayton asked. Abrams said that indeed he did, that ‘we are all a big human family’ and ‘those that stand for the people, I call them father'. But the judge had made his point, and the jury had no doubt gotten it.

What is a ‘federal question’? Section two of article three of the Constitution grants jurisdiction to federal courts over, among other items, ‘all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made … under their authority’. This has become generally known as the grant of ‘federal question’ jurisdiction. The present statute giving such jurisdiction to federal courts dates only from 1875; not only has it been restrictively construed, but existing federal schemes of benefits, rights, and regulations provide us with a familiar, pat, confining notion of the nature of federal questions. What sorts of matters might have been expected to constitute federal questions in 1787, when the Constitution was written, and when such schemes were not contemplated much less established?

English manorial-court documentation, in many respects unique among European countries for its information pertaining to the bulk of rural dwellers in the middle ages, has long provided the most voluminous evidence for studying many aspects of medieval society. We have no doubt that it will continue to do so; yet, as the metaphorical title of our original essay was intended to convey, the ‘window’ through which we may view this society has finite dimensions. It was our intention to suggest some ways in which these dimensions can be more clearly understood. At its most basic level, then, our concern was with one of the most fundamental questions of legal as well as social history: the relationship between the scope of a legal arena's purview and the society in which that arena operated. Our focus was, however, squarely upon Zvi Razi's attempts at demographic inference from the Halesowen court material because he has made the boldest claims to date for the ability of manorial courts’ recorded transactions to reflect the whole of their communities’ populations and activities.

Drs. L.R. Poos and R.M. Smith have strongly criticized the uses made of manorial court rolls for demographic analysis. They have argued that the data obtained from the court records are inadequate in measuring the demographic trend and in making observations about replacement rates, expectation of life, marriage and illegitimacy. It seems to me, however, that although their criticism is partly justified, on the whole it is unduly negative. First, the claim that the demographic trend cannot be measured from court rolls will be examined; and thereafter the other issues raised by Poos and Smith will be discussed.