Discussion and debate over the nature of federalism is one of the staples of American public discourse. Among historians and lawyers, politicians and judges this constant has remained. It is only the context of the discourse which has changed over time. Given the unusual framework of union provided by the Constitution it is hardly surprising that debate over its nature should continue for concepts of constitutionalism, federalism and law in American culture have melded into an alloy from which it is often impossible to determine which is the baser metal. Continuing inquiry over the proper balance between state and national authority and over the proper reach of federal jurisdiction has prompted as many scholarly endeavors as ever the quest for the Holy Grail led brave knights to their adventures. The endless searches among scholars, lawyers and jurists for ‘the original understanding’ of ‘the Framers’ has been an active industry for generations, seldom more so than in our own time. This is itself a striking cultural fact, and like the quest for the Grail, the center around which a huge corpus of legend, romance, learned scholarship and wishful thinking revolves.

No term of the United States Supreme Court, in this century, has gone by without significant or dramatic cases. October Term, 1922 was no exception. The court was in transition. A new Chief Justice, William Howard Taft, had taken office in 1921; three justices retired in 1922. Late in the term, the court decided Adkins v. Children's Hospital. This was one of the cases which earned the Court a reputation for dark reaction; the Court voided a law which allowed the District of Columbia to fix minimum wages for women and children. In October Term, the Court also had one of its rare encounters with the constitutional aspects of eminent domain. The case was Pennsylvania Coal Co. v. Mahon. Oliver Wendell Holmes, Jr., wrote the opinion. This case too disappointed the left, and gave comfort to conservative interests.

The United States Constitution established a federal system, not a national government. States continued necessarily and by design as active and important centers of governmental activity. States were institutions of inherent authority, while the federal government by original intent and then explicitly by amendment, was a government of only delegated powers. Since the federal government derived its power directly from the people and acted directly on individuals, it was decisively more powerful than the pre-Constitution Confederation. But the Bill of Rights itself is evidence of the continued worry, pervasive until modified by the Reconstruction Amendments, that the federal government might, but should not, overwhelm the states.

Cardin Le Bret, councillor of state during the ministry of Richelieu, is sufficiently distinguished to have merited two monographs in modern historiography. The basis of his renown is not his official deeds, however, but his political writings. Moreover, within the large corpus of those writings (630 folio pages, published three times), one treatise alone raises him from obscurity: De la Souveraineté du Roy, first published in 1632. And finally (to allot Le Bret the least that is due him), the fame of that treatise owes less to the perspicuity of its author than to the timeliness of its subject. It is one of the first comprehensive treatments of sovereignty to appear after Jean Bodin ‘invented’ that concept in his Six livres de la République (1576). Le Bret's treatise could thus provide important evidence of the status of ‘sovereignty’ in legal and political discourse two generations after Bodin.

In his excellent piece in this symposium, Robert Palmer essentially makes the argument that the general federal common law of crimes was an illegitimate creation of beleaguered Federalist judges, an arbitrary exercise of a constitutionally impermissible jurisdiction, and a novel usurpation by the courts of the American legislature's prerogatives.

More than half a century ago, Walton H. Hamilton recognized the dual economic and moral spirit of the nineteenth century's ‘sense of individualism’ when he wrote that the legal maxim caveat emptor ‘served well its two masters, business and justice’. However, recent scholarship has captured only half that spirit. Historians have concentrated on business and attributed the way judges shaped the law of the marketplace to their desire to promote economic growth. James Willard Hurst, in his seminal Law and the Conditions of Freedom in the Nineteenth Century United States, posits ‘the release of individual creative energy’ as the ‘dominant value’ in American law for the first half or three-quarters of the nineteenth century, pointing to such developments as the judicial embellishment of ‘procedures and instruments to promote dealing at a distance and on credit’ in response ‘to the needs of a growing commerce’. Lawrence M. Friedman states that nineteenth century contract law was ‘attuned to the needs of a growing economy, at least as the leading judges read those needs’. Harold M. Hyman and William M. Wiecek credit the content of pre-Civil War contract law to the ‘developmental, entrepreneurial bias’ of antebellum judges. According to Bernard Schwartz, the job of American law, at least through the Civil War, was ‘to furnish the legal tools necessary for effective mobilization of the community's resources’. William E. Nelson, adding a class twist to the ‘developmental’ theme, writes that the law in the nineteenth century ‘came to be a tool by which those interest groups that had emerged victorious in the competition for control of law-making institutions could seize most of society's wealth for themselves and enforce their seizure upon the losers’.

At 10:00 A.M. on May 21, 1845, ‘the tall, straight figure and pale, grave face of the slave's friend, Alvan Stewart’, turned toward the justices of the New Jersey Supreme Court as he commenced his opening argument in the companion cases, State v. Post and State v. Van Beuren. In the ensuing hours, Stewart argued for the immediate abolition of slavery and black apprenticeship in New Jersey. Although Stewart relied upon many authorities, the justices and the attorneys for the defendants believed that his most promising argument was based upon the state constitution of 1844, the first of the state's fundamental laws to declare that ‘all men are by nature free and independent’. On the following day, the defense counsel—A.O. Zabriskie, a Hackensack attorney, and Joseph P. Bradley, the future U.S. Supreme Court Justice—spoke with ‘much energy and ingenuity’ until five o'clock. The reply of the ‘Abolition Ajax’ lasted until 10:30 and closed with an impassioned appeal to the justices. ‘Such was the impressiveness with which the closing appeal of the advocate for freedom was delivered’, a newspaperman reported, that none of the large audience wished to ‘break the spell his eloquence had cast upon the assembly’. At length, the bench arose, and Chief Justice Joseph Hornblower adjourned the court.

The action of covenant before the reign of Edward III is a subject of considerable mystery. By the time that the Year Books come to the fore in the last decade of the thirteenth century, it has become a relatively scarce form of action in the royal courts, and consequently our sources of information are fairly scanty; in addition, by this time, the restrictions which limited the potential of covenant as a general contractual remedy are already firmly in evidence, with the result that the development of these restrictions is not easily visible. There is, though, a considerable amount of additional material in the rolls of the Justices in Eyre in the reign of Edward I, and in some of the multifarious tracts on pleading which proliferated in the later years of the thirteenth century and which have remained for the most part in manuscripts which have not been systematically examined by legal historians.

Clause 11 of King John's Magna Carta has not received as searching an examination as have other clauses of that document. For example, McKechnie's comment runs to only half a page. In the 295 pages which he devotes to the individual clauses of Magna Carta, only his comments on clauses 62 and 63, clauses which he describes as ‘entirely of a formal nature’, and on clauses 53 and 57 are shorter. True, some of the points which have relevance for clause 11 are made in his comment on clause 10. But nearly all such points concern the Jews, whereas it is the intention of the present article to argue that the Jewish aspect of clause 11 has been too much discussed, or too much assumed, at the expense of other aspects, particularly its connection with guardians. After all, the common assumption that clause 11 represents part of a baronial attack on the Jews has been coupled, rather paradoxically, with the admission that it was too superficial to have much effect on the Jews. It is worthwhile inquiring whether the paradox really exists. Is the superficial effect on the Jews an indication that the purpose of the clause, at least in its origin, lay in a different direction? This article will suggest the possibility that unscrupulous guardians were the primary target of clause 11.

Whatever their other disagreements, most students of early modern judicial records agree that by the end of the sixteenth century England's criminal courts were busier than ever before. Studies by Joel Samaha, J.S. Cockburn, Keith Wrightson and J.A. Sharpe all point to an increase in the level of criminal prosecutions, and in particular to an increase in prosecutions for property crime. These changes in turn suggest a change in actual behaviour: apparently more people were stealing more often. Such a conclusion becomes more convincing when one recalls the state of the Elizabethan economy. By at least the 1580's the economic expansion of the sixteenth century was beginning to give way to crisis. England's society and economy suffered the combined effects of war, harvest failure, plague and industrial stagnation. Mortality and food prices rose, wages and employment opportunities shrank, and poverty became more pronounced.

Until recently there was a depressing consensus about Scottish legal history in the medieval and early modern periods. It was accepted that in the twelfth and thirteenth centuries the Scots had gone some way to building a legal system on the model found in contemporary England, involving the holding of courts in the localities by sheriffs and justiciars on ayres, the use of royal writs or brieves to commence litigations, and the determination of cases by juries or assizes. The fullest account of Scottish law, Regiam Majestatem, was based on the twelfth century English text Glanvill. The wars and other skirmishes with England which began in 1296 and continued into the sixteenth century brought an end to the development of the ‘Scoto-Norman’law and legal system however. Cut off from its basic inspiration and lacking either a central court structure or a legal profession, Scots law regressed throughout the later middle ages. Demands for better justice led the king by the end of the fifteenth century to establish a group of royal councillors to hold judicial sessions or sittings at which such complaints might be heard. The councillors—the lords of council and session—might be either ecclesiastics or laymen; the former were more numerous and possessed greater legal skills. The procedure of the emerging court thus followed that of the ecclesiastical courts and the substantive law which developed was also canonical and civilian in character. By the mid-sixteenth century the Session was established as the main civil court in Scotland and Scots law had made a fresh start, severed from its original roots.

The Supreme Court of North Carolina is an anomaly among state courts in the antebellum years. In a period dominated by democratic reforms of state government, the court did not merely survive unscathed it actually increased its independence. The remarkable success of this court is largely attributable to the personal reputations and political acumen of two of its judges, Thomas Ruffin and William Gaston. Without those two men it is likely that the Supreme Court would have been abolished in a wave of democratic reforms that peaked in North Carolina with the constitutional amendments of 1835.

Ninety-seven years ago, the English legal historian Frederic William Maitland gave a lecture called ‘Why the History of English Law is Not Written’. This essay has something of a similar theme, on a much more modest scale: ‘Why a recent, scholarly, relatively comprehensive history of medieval English law as it applied to women has not been written’. Its purpose is both to examine factors which may have deterred historians from undertaking such a project and to attempt an overview of the kind of work in women's legal history that has been, and is being, done.

The jurists of the classical period of Roman private law (50 B.C.—250 A.D.) encountered a variety of legal problems arising from the activity of those employed in the city's building industry. This segment of the Roman economy was prosperous and busy. Yet, despite the Romans' zeal for construction, a detailed description of how building projects were organized has proved illusive. This is the result of two factors. First, the Romans, unlike the Greeks, tended not to preserve on stone details about the actual construction of their edifices. A second, more general cause is found in the nature of construction as an enterprise. Although building furnishes a basic need, the demand for it is episodic and unstable. Forces of labor and supplies of materials are procured in response to specific commissions. In addition, there are many possible ways in which these productive forces can be organized, and building is typically characterized by a high degree of diversity in regard to methods of organization. For these reasons, builders and building have not been particularly accessible topics for researchers. It is only in the juristic sources that we get a relatively full picture of the activities of builders at Rome.

The National Archives should make a scientific documentary examination of the Engrossed Declaration of Independence now on display in the Archives. It should use such techniques as will both insure preservation of the integrity of the document and will yield the maximum of information. Among the techniques that may be appropriate are ultraviolet and betaradiography and paleography.

The ubiquity and endurance of Justice Holmes as a figure of historical interest has begun to rival the prominence of Holmes during his lifetime. It seems that each time the direction of American scholarship takes a new turn, a group of scholars emerges with some ‘fresh’ thoughts on Holmes; it seems that no matter how much Holmes has been dissected or analyzed, he provides commentators with something new to write about. The appearance of a series of scholarly assessments of Holmes in the 1980s provides another example of this phenomenon. In an article published in 1982 I noted that four lectures and symposia had been devoted to Holmes since 1980; in addition, two books devoted entirely to Holmes, another in which Holmes figures prominently, and a series of law review articles on Holmes have appeared in the decade. Once again the scholarly process of generational revisionism has included Holmes. In seeing themselves and their work anew commentators have also seen the image of Holmes in altered form.