WSG Article: Who Do We Think We Are? Lawyers as Stewards of a Noble Profession

Who Do We Think We Are? Lawyers as Stewards of a Noble Profession

September, 2022 - Ayers, Marc James

Introduction: Lawyers as Stewards of a Noble Profession

In the final scenes of the movie “A Few Good Men” – one of the great classics of legal cinema – under dramatic, but extremely risky cross-examination by Lt. Daniel Kaffee (played by Tom Cruise), Col. Nathan Jessup (played by Jack Nicholson) admitted to directing the kind of “Code Red” discipline which led to the unintentional death of a Marine stationed at Guantanamo Bay, Cuba. Although contrary to military law, Col. Jessup explains that he did it for what he personally determined to be the greater good. When he is being arrested following this in-court admission, he is outraged, and he and Lt. Kaffee – who has up until this trial spent his career simply processing cases, looking for the easy way out and using his status for his own comfort, but is now finally embracing his true calling as a lawyer – have the following exchange:

Col. Jessup: … You have no idea how to defend a nation. All you did was weaken a country today, Kaffee. That’s all you did. You put people’s lives in danger. Sweet dreams, son.

Lt. Kaffee: Don’t call me son. I’m a lawyer and an officer in the United States Navy. And you’re under arrest….

While the status of military officer is generally held in high esteem, one wonders about how the public views the status of the typical modern lawyer. We certainly do ourselves no favors with overly-aggressive and uncharitable litigation antics, unprofessional and sometimes simply humiliating television commercials, and the like (as well-known and long-circulating lawyer jokes demonstrate). Of course, there are some perceptions that may linger regardless of how we hold ourselves out.

Regardless, we should do whatever we can to help our profession regain and maintain its dignity. In that regard, perhaps a better starting question is: Who do we think we are? What do we think our profession is, and what should it be? Are we true professionals who care deeply about the law and its role in preserving society, or are we, as some have asserted, mere claims processors or technicians?

Such an inquiry should drive us to recall the great historic legal tradition into which we entered when we became members of the bar – a tradition that is one of the core pillars of Western civilization. We often call it the legal “industry,” which in many ways is unfortunate. Historically, the legal profession was seen as a true profession, as a calling. Indeed, in the past – meaning in our past as a body of lawyers – entry into the profession followed one’s being literally “called to the bar.”[1] Remember that even terms like bar connect us to our history, and show that the profession was intended to have a particular dignity. The bar refers to a wooden rail or partition in a court room which separated the public area from those qualified to address the court on the law. To be called to the bar is to be recognized and received into this body of professionals.[2]

How does such an ancient and noble profession lose its perspective and lose the sense of dignity that should follow? It is actually quite easy, especially given the hectic schedules that many of us follow, to allow what we do to become a mere technical, plug-and-chug industry. We either never learned, or have long forgotten, the roots of our noble profession. So many things that we do day to day without much thought are actually tools that have been handed down as a part of the great and ancient English law tradition.

We are not mere technicians or claims processors, loudmouth braggards or bullies who manipulate the law. Rather, we need to think of ourselves as stewards entrusted with a sacred duty to the public and society, a notion aptly summarized by the Florida Supreme Court in a 1942 decision:

The administration of justice is a composite rather than an individual concept. It is a derivative of Christian ethics and with us has attained a significance that it has nowhere else on earth. It contemplates the righteous settlement of every controversy that arises affecting the life, liberty, or property of the individual. Lawyers and judges are stewards of the law provided for this purpose. …

Since the practice of the law deals with the most abiding and the most vital relations of life, we speak of it as a great and honored profession. Mr. Justice Brandeis characterized a profession as “an occupation for which the necessary preliminary training is intellectual in character, involving knowledge and to some extent learning as distinguished from mere skill, an occupation which is pursued largely for others and not merely for one’s self, an occupation in which the amount of financial return is not the accepted measure of success.” In fact, the practitioner who makes financial return his main objective will experience little of the real joy that come to those whose interest in the law rises above the economic.

The administration of justice is the business of the public. Members of the bar are stewards commissioned to perform that business. Their stewardship will be successful in proportion to the manner in which they take the public into their confidence and perform it with a fidelity alike to the state, to client, and to the profession. …

…

Whatever truth there is to the charge that the public no longer trusts the bar is not due to the fact that a majority have become ethically obtuse. It is due to the fact that an unscrupulous minority are unfaithful stewards, who insist on placing the emphasis in the wrong place; too much concern about fees and winning cases and too little concern about administering justice in the way to inspire public confidence. Making a fee is important but it is incidental to doing justice and is not the “accepted measure of success” at the bar….[3]

And as stated by a California federal district court:

… We live in a nation governed by the rule of law. We’ve constructed a powerful government to administer that law – a government that can deprive a person of property, liberty, and even life. But unlike governments of men, which depend on might, our government of law ultimately depends on the consent of the governed for its continued existence. The public must trust that the government and the legal system that undergirds it are fair and just. Lawyers serve as both stewards and servants of that trust. Since well before the law was an industry, our society looked to the profession to safeguard a complex system that keeps our country going….[4]

The goal of this article is to briefly examine just a few of the many aspects of our day-to-day practice of quite ancient and distinguished lineage which should generate deeper appreciation. As will be necessary for an article of this length, the discussion is highly generalized, and each subject is certainly worthy of more detailed consideration. The hope is, however, that by even taking a quick look at the historical development and weight of many of the tools entrusted to us, we will be given pause to consider and reevaluate the true dignity of our profession.

A Short History of Some of the Tools of Our Profession

The Common Law

Alabama has always been, of course, a common law state.[5] This principle is expressly stated in the Alabama code, which provides that “[t]he common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the Legislature.”[6] As Alabama practitioners, we frequently call upon and utilize the tools of the common law – elements of common law causes of action, common law remedies and defenses, etc. – as we have been trained to do, but without much thought to the fact that those tools are the end product of an ancient development which has been entrusted to us to maintain for the good of society.

What we know as the common law – often referred to as judge-made law or case law, as it evolved through the application of general maxims, logic, and reason to individual cases – began to come into existence almost 1,000 years ago from a need to bring a sense of uniformity and consistency to what was a patchwork of differing local legal systems. Many historians trace the beginnings of the English common law system to the Norman Conquest by William the Conqueror in 1066. Prior to the Conquest, law in Anglo-Saxon England was controlled by various local practices and customs:

There were three distinct systems in place: the law of Wessex, the law of Mercia, and the Danelaw. But there were differences of detail, particularly in procedure, in each of the 32 counties. Oath [and] ordeal … were universal modes of proof; but their detailed operation varied from place to place and according to the status of the parties. Since all proceedings were oral, legal tradition was unstable. Litigation … was as uncertain as a game of dice.[7]

Following the Conquest, however, now-King William I recognized that any effective lordship over the great island required a much more organized administration of justice and a uniform system of law. One of the major components of William’s efforts in this regard was his establishment of the Curia Regis (“King’s Court”). The Curia Regis was a royal household of advisors and counsellors – something which was not unusual and existed in some form even under the Anglo-Saxon kings[8] – but which also became, under William, an actual body which would, along with the king, hear petitions and administer the king’s justice.[9] As noted above, the king and his advisors would sit on a literal bench against a wall, a practice which eventually provided the name of one of the most important of the king’s courts: the Court of King’s Bench.

However, the king did not administer his justice in this way solely from London. Along with his Curia, King William would actually travel throughout the realm to hear and resolve various matters and petitions. In this way, the king could actually begin to create some level of uniformity in the legal principles that would bind the whole of the country as the law of the land.

Development of the common law was somewhat interrupted during the turbulent times following William’s death – in particular stemming from the civil war between King Stephen and Empress Matilda[10] – but took major steps forward during the reign of Henry II (1154-89).[11] Like William, Henry II also had a strong desire to centralize his authority and to have a uniform system of law. One of the innovations implemented by Henry was to create justices in eyre – eyre meaning circuit.[12] Also known as itinerant justices, these judges would ride circuit through the country and hear matters in the name of the king.[13] In Henry’s time there were only 18 judges in the country, and, of these, five remained in London and comprised the Court of King’s Bench in Westminster.[14] Under this system, the itinerant justices, who were versed in the laws and legal principles established at Westminster in London, would take and apply those same laws and principles in the various areas of the realm.

While this system of itinerant justices applying a growing, more consistent corpus of English law accomplished much in the creation of the common law, that process was greatly aided with the advent of the written decision. In the mid-13^th century, court decisions and judgments, which until then were oral, began to be recorded, thus giving rise to a more concrete application of precedent. Indeed, the earliest system of law reporting was known as The Year Books, which were written in either Latin or French and contain decisions issued during the reign of Edward I (1272-1307).[15] From this point forward, the decisions handed down in English law courts could now be read and applied as precedent in similar cases in other locales.

It is from these beginnings that the law in England could become truly common, and that resultant common law – with all of its reasoned intricacies and underlying policies developed over a millennium – continues on as one of the great treasures of our society. When we become members of the bar, we, like so many before us, are entrusted to serve as stewards of that treasure.

Equity and Equitable Remedies

Today, few of us would consider the seeking of equitable remedies such as injunctions, decrees of specific performance, rescission, and reformation, etc. as particularly noteworthy. Such litigation tools are so familiar and frequently invoked today that it would be easy to forget that the only reason we are able to seek such remedies is due to exceptional developments in England which occurred many hundreds of years ago and have since been handed down to us by our predecessors at the bar – a body into which we have now been called.

Although the gradual establishment of the English common law provided uniformity and consistency, the procedures and remedies developed by the common law courts also began to be criticized at times as being overly rigid, overly technical, and slow. Bringing an action before the justices could be expensive and often required one to fit their particular cause of action within a tightly-defined set of authorized writs in order to be permitted to have a case heard.[16] And the common law courts had limited remedies. The primary remedy – often the sole available remedy – was money damages, even when such damages did not actually provide effective relief under the circumstances.

These and other difficulties left many searching for other avenues to seek redress for their grievances. One historically-available avenue for those who could not achieve an effective remedy in the law courts was to petition the king directly, as the king was always considered to be the Fount of Justice.[17] Such petitions began to increase in frequency, and the resolution of such petitions was eventually given over to the king’s chancellor. The chancellor was one of the king’s chief advisors and was considered to be “the keeper of the King’s conscience.”[18] Perhaps not surprisingly, therefore, in earlier years the chancellor was often a cleric (with some exceptions such as Sir Thomas More, called to the bar in 1502, who served under King Henry VIII and who was “the first chancellor since the fourteenth century to have been educated in the common law”).[19]

In resolving petitions directed to the king, the chancellor was therefore not limited by the strict rules developed under the common law and was not limited to awarding money damages. Rather, the chancellor’s focus was on achieving a just and fair result in the name of the king – an equitable result – under the particular circumstances of the case. As Lord Chancellor Ellesmere explained in 1615, this power existed because men’s actions are so diverse and infinite that it is impossible to make a general law which may aptly meet with every particular and not fail in some circumstances. The office of the chancellor is to correct men’s consciences for frauds, breaches of trust, wrongs, and oppressions of what nature soever they be, and to soften and mollify the extremity of the law.[20]

In the 15^th century, these petitions began to be sent directly to the chancellor, and the chancellor worked through a specialized court to hear these petitions, the Court of Chancery.[21]

Early on, the availability of equitable remedies was criticized for being too arbitrary, too varied from case to case (as opposed to the common law courts, which, by that point, maintained uniformity and consistency through established procedures, defined causes of action and written precedent). Indeed, jurist John Selden, called to the bar in 1612, famously quipped that equity varied like the length of the chancellor’s foot.[22] However, the application of equity still followed certain recognized equitable maxims, and eventually written precedent for equitable decisions was available as well. Accordingly, as with common law actions and remedies, the availability of equitable remedies likewise became subject to recognized rules, elements and precedent, providing a level of consistency which we in the bar utilize and benefit from even today, centuries later.[23]

Trial by Jury

Another concept that is frequently mentioned in our profession, and appropriately so, is the right to trial by jury. Alabama has always enshrined this as a constitutional right,[24] currently found in Article I, § 11 of the Alabama Constitution of 1901, which states “[t]hat the right of trial by jury shall remain inviolate” as an essential component of “the great, general, and essential principles of liberty and free government may be recognized and established.”[25] As lawyers, we know this to be a bedrock, sacred principle. But, again, we often forget the ancient roots of this right which our profession is entrusted to protect.

It is difficult to pinpoint precisely when the jury system first took form in England, but there are many indications that the seeds were growing at a very early stage, even prior to the Norman Conquest. One oft-cited pre-Conquest example hails from the time of King Aethelred II (978-1016). From Anglo-Saxon times, England was divided into shires (counties) and further divided into hundreds (referred to as wapentakes in the Danish areas).[26] Each area was presided over by an official: the reeve for the shires/counties – from which we get the office of shire-reeve or sheriff – and the bailiff or hundredman for the hundreds.[27] In 997, Aethelred decreed that, in the Danish districts, 12 men should serve as a sort of presenting grand jury: “A court is to be held in each wapentake [i.e., shire/county], and the twelve leading thegns [i.e., nobles], and with them the reeve, are to come forward and swear on the relics that are put into their hands that they shall accuse no guiltless man nor conceal any guilty one.”[28]

However, different components of what would become the jury system as we now know it – both the grand jury and the petit jury – would become much more concrete following the Conquest. Indeed, there is some evidence that a form of jury established in France in the early ninth century may have traveled with William I to England during the Conquest. For example, in 829, Emperor Louis the Pious, the son of Charlemagne, ordered that royal rights would not be determined by witness testimony but by “the sworn statement of the best and most credible people of the district.”[29]

Continuing and expanding upon a Norman process occasionally used by William I, Henry II established by assize[30] various forms of trial by inquisition (also known as inquest).[31] Originally, inquisitions were administrative devices used in England following the Conquest to obtain information useful to the government, such as general census information; particulars concerning land, land ownership and valuation information; etc.[32] This information would be collected by directing, often with the assistance of the local sheriff, the presence of a group of local people to answer questions. Such information formed the basis for official records some as the famous Domesday Book compiled under William I.[33]

Through his Assize of Clarendon in 1166, Henry II established the inquisition – one involving 12 persons – as a core aspect of criminal procedure that ultimately would form the basis for the grand jury.[34] Under the Assize, Henry II directed:

… that inquiry shall be made in every county and in every hundred by the twelve most lawful men of the hundred … upon oath that they shall speak the truth, whether in the hundred or vill there be any man who is accused or believed to be a robber, murderer, thief, or a receiver of robbers, murderers or thieves since the King’s accession. And this the justices and sheriffs shall enquire before themselves.[35]

Once such an accused was captured, they were to be brought before the justices where the accused must make their law before the justices.[36] Making one’s law was one of the accepted modes of trial, in addition to trial by ordeal (where the accused would hold a hot iron or a stone from boiling water and would be proclaimed innocent if the burn would begin to heal in three days – a method later abolished following its condemnation by the Catholic Church in the Fourth Lateran Council of 1215[37]), and trial by battle.[38] To make one’s law the accused needed to find a certain number of people (often 12) who would swear by oath that the accused was a credible person; they did not swear as to the facts of the case.[39]

The abolition of the trial by ordeal and the fundamental limitations inherent in the process of making one’s law eventually led many justices in the mid-13^th century to begin to select a petit jury to hear and decide cases on the merits (at times from the members of the presenting jury, which raised obvious fairness concerns), and trial by jury in criminal actions was effectively imposed by statute in 1275.[40] By the 15^th century, the use of the jury – and many of its particulars, such as the separation of issues of fact from issues of law – effectively reflected the modern use.

The use of the jury to determine rights and find facts has certainly evolved over more than a millennium. However, the key characteristic remains: that judgments will be rendered not by royal or government fiat but upon the consideration of one’s peers. As one scholar put it, “[a]n administrative device became in the fullness of time a part of the judicial system, and, adding to this its old representative character, finally grew into a cherished safeguard of liberty.”[41] Accordingly, as members of the profession empowered and entrusted to engage this system, we should strive to maintain its historic meaning, dignity, and importance.

Due Process

Attorneys often invoke the concept of “due process” in any number of contexts. The right to due process is of course guaranteed in both the Alabama and the United States Constitutions.[42] But when we invoke this important notion we are tapping into a central concept of free society – namely that law and legal process is over and binds even royal authority – which flowered in the Magna Carta itself.

Most are likely familiar with the origins of the Great Charter. In 1215, King John (1199-1216), who came to the throne following the death of his much-more-popular brother Richard I (“the Lionheart”), was facing open rebellion by many of his barons. This rebellion stemmed from many abuses of royal power by John including, among other things, oppressive taxation, misuses of the courts, and illegal imprisonment. In return for their continued loyalty, John met with his barons at Runnymede on June 15, 1215 and agreed to be bound by certain written guarantees that purported to limit royal power in various ways. Among these was Section 39, which guaranteed that the king could not unilaterally sanction or punish any free man and that such power – meaning the reach of the king himself – was limited by and must be in conformity with the law of the land:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will [the King] proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.[43]

This notion – that even the king is subject to the law of the realm – is obviously one of the most important and enduring aspects of Magna Carta. Also, the possibility of enforcing such a concept was strengthened by the fact that, as discussed above, England now had, in growing form, a law of the realm that was truly common and identifiable.[44] As scholars have noted, “[i]ndeed, the idea of the ‘the law of the land’ was itself a fairly new one, as England could only be said to have a ‘common law,’ a law in use in all the English king’s domain, from the reign of Henry II….”[45]

Later, in a statute confirming Magna Carta enacted during the reign of Edward III (1327-1377), the king slightly revised this language, “ordain[ing] that ‘the Great Charter . . . be kept and maintained … and that no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken or imprisoned nor disinherited, nor put to death, without being brought in Answer by due Process of Law.’”[46] This phrasing – and the novel use of the phrase due process of law – is almost an exact parallel to the guarantees found in the Fifth Amendment to the United States Constitution (“No person shall be … deprived of life, liberty, or property, without due process of law”[47]), the Fourteenth Amendment to the United States Constitution (“nor shall any State deprive any person of life, liberty, or property, without due process of law”[48]), and Article I, Section 6 of the Alabama Constitution (“in all criminal prosecutions, the accused … shall not … be deprived of life, liberty, or property, except by due process of law”[49]). Writing for the Court in Kerry v. Din, 576 U.S. 86 (2015), Justice Scalia noted that “at the time of the Fifth Amendment’s ratification, the words ‘due process of law’ were understood ‘to convey the same meaning as the words “by the law of the land” in Magna Carta.’”[50]

It goes without saying that the notion of due process – the idea that an accused is entitled to notice and a fair hearing before his life, liberty, or property can be put in jeopardy, regardless of the political or social status of the accuser – is a notion that bears tremendous historic weight. In protecting and defending the right of due process, “we stand in the long line of fellow lawyers who worked to create, develop and protect this ancient right. As one modern jurist put it, “if we, as lawyers and judges … want to preserve and protect the 800-year-old legacy of Magna Carta, we must be ever vigilant in the performance of our duties as stewards and ‘guardians of the law.’”[51]

Conclusion

As noted above, many more examples of the historic jewels of (what should be) our noble profession could be given, and we would benefit from reviewing that – our – history.[52] As stewards of the law, we are called to protect its dignity for the sake and protection of the citizenry, whom we also serve. In this way, we help ensure that we are a “government of laws, not of men,”[53] and that persons – all persons – will be judged not by power, bullying, or fiat, but by a uniform law. By doing so, our profession helps maintain peace, stability, and consistency in society, as those who act in accord with the “law of the land” can rest safe in their person or property.

A good example of this sense of safety by law is seen in Robert Bolt’s famous play concerning Sir Thomas More, mentioned above: “A Man for All Seasons” – itself a legal classic, the film version of which won the Academy Award for Best Picture in 1966 – which dramatizes the events leading up to More’s execution by Henry VIII for his refusal to swear an oath to Henry’s radical claim to be the head of the English Church. More was an extraordinary lawyer and is in fact recognized by the Catholic Church as the patron saint of lawyers. Bolt sets forth More’s solid legal defense, in which More simply refused to speak on the matter of the king under the English common law maxim qui tacet consentire (“silence gives consent”). Under this maxim, one could not be convicted of high treason without making an actual treasonous statement, and if one was to presume anything from More’s silence they must, under the law, presume his consent.

It is only through corruption of the law (perjury) – and by the failure of other lawyers to properly act as stewards of the law – that More was ultimately executed. But, as Bolt reflects in a powerful scene in Act Two, More knew that, properly and consistently followed and applied, the law provided him protection from even the most powerful people in the realm:

MORE: For myself, I have no doubt.

THOMAS CROMWELL: No doubt of what?

MORE: No doubt of my grounds for refusing this oath. Grounds I will tell to the King alone, and which you, Master Secretary, will not trick out of me.

. . .

CROMWELL: You don’t seem to appreciate the seriousness of your position.

MORE: I defy anyone to live in that cell for a year and not appreciate the seriousness of his position.

CROMWELL: Yet the State has harsher punishments.

MORE: You threaten like a dockside bully.

CROMWELL: How should I threaten?

MORE: Like a Minister of State, with justice!

CROMWELL: Oh, justice is what you’re threatened with.

MORE: Then I’m not threatened.

May we strive to be good stewards of the law and of the great legal traditions handed down by those in our profession who went before us, that the law and our profession will be seen and recognized by others as a source of dignity, stability, and protection, and not of embarrassment, ridicule, or threat.

Republished with permission. This article, "Who Do We Think We Are?" was published in Alabama State Bar's The Alabama Lawyer on September 29, 2022.

Endnotes

[1] See generally Sir John Baker, An Introduction to English Legal History 165-71 (Oxford Univ. Press 2019) (discussing the origins of the law as a profession).

[2] Likewise, as referenced below, speaking of judges as the “bench” is a reference to the ancient practice of judges sitting on a literal bench to hear and decide cases, sometimes with the king present (as in the English Court of King’s Bench discussed below).

[3] Lambdin v. State, 9 So. 2d 192, 193–94 (Fla. 1942) (emphasis added).

[4] State Comp. Ins. Fund v. Drobot, 192 F. Supp. 3d 1080, 1083–84 (C.D. Cal. 2016) (emphasis added).

[5] Hollis v. Crittenden, 251 Ala. 320, 323, 37 So. 2d 193, 195 (1948) (noting that “Alabama is a common law state”) (citing Ala. Code 1940, Title 1, § 3).

[6] Ala. Code 1975, § 1-3-1.

[7] Sir John Baker, An Introduction to English Legal History 16 (Oxford Univ. Press 2019) (discussing the Leges Henrici Primi (c. 1118), which, as Baker points out, was not actually a law code of Henry I). Baker’s quoted discussion of the Leges Henrici Primi actually describes the situation during the first 50 years after 1066, but it is a fairly apt description of the pre-Conquest legal systems in England. The original quote includes a reference to trial by battle, which did not appear until after the Conquest. See John Hudson, The Formation of the English Common Law: Law and Society in England From King Alfred to Magna Carta 114 (Routledge, 2d ed. 2018)). For an excellent summary and discussion of the development of the laws of England, and on the study of those laws, one should certainly read the Introduction to Sir William Blackstone’s masterpiece, his Commentaries on the Laws of England.

[8] See Brockelbank, W.J., Beginners’ Notes on the History of the English Courts, 4:4 Ala. L.J. 249, 252-55 (May 1929).

[9] Id.; Baker, supra n.7 at 20-21.

[10] See Hudson, supra n.7 at 119-22.

[11] Baker, supra n.7 at 16 (“The foundation of the common law is usually traced to the reign of Henry II….”).

[12] See id. at 19; Hudson supra n. 7 at 122-24.

[13] See Baker, supra n.7 at 19; Hudson, supra n.7 at 122-24.

[14] Baker, supra n.7 at 21; Hudson, supra n.7 at 130; Sir Frederick Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I 163 (Cambridge University Press, 2d ed. 1898) (republished by permission by Liberty Fund, Inc.).

[15] Baker, supra n.7 at 189-90; Pollock & Maitland, supra n.14, Vol. 1 at 229-30.

[16] See Baker, supra n.7 at 60-77.

[17] See 1 Lord Campbell, Lives of the Lord Chancellors and Keepers of the Great Seal of England 3 (Soule, Thomas & Wentworth 1874) (“With us the King has ever been considered the fountain of justice.”).

[18] Id. at 4.

[19] Baker, supra n.7 at 115.

[20] Id.

[21] Theodore F.T. Plucknett, A Concise History of the Common Law 161-62 (The Lawyers Co-operative Publishing Co., 2d ed. 1936).

[22] See Baker, supra n.7 at 118-19.

[23] Id.

[24] This right has been expressly recognized in Alabama from the beginning of its statehood. See Ala. Const. 1819, Art. I, § 28 (“The right of trial by jury shall remain inviolate.”).

[25] Ala. Const. 1901, Art. I, § 11.

[26] Baker, supra n.7 at 9; Pollock & Maitland, supra n.14, Vol. 1 at 561-89.

[27] See Baker, supra n.7 at 9, 12; Pollock & Maitland, supra n.14, Vol. 1 at 587; Brockelbank, W.J., Beginners’ Notes on the History of the English Courts, 4:4 Ala. L.J. 249, 250-53 (May 1929).

[28] Hudson, supra n.7 at 59; Pollock & Maitland, supra n.14, Vol. 1 at 151-52; Baker, supra n.7 at 79-80.

[29] Plucknett, supra n.21 at 104.

[30] An “assize,” while initially meaning a type of convening council, eventually came to mean an enactment made at such a gathering. See id. at 106.

[31] Plucknett, supra n.21 at 105-06; Pollock & Maitland, supra n.14, Vol. 1 at 152-54.

[32] See Plucknett, supra n.21 at 106-07; Baker, supra n.7 at 79-80, 242-43.

[33] Plucknett, supra n.21 at 107; Baker, supra n.7 at 242-43.

[34] Plucknett, supra n.21 at 107-08.

[35] Id. at 107.

[36] Id. at 108.

[37] Id. at 112.

[38] Id. at 108-09.

[39] Id. at 109.

[40] Id. at 118-19.

[41] Plucknett, supra n.21 at 127.

[42] See John Hudson, The Formation of the English Common Law: Law and Society in England From King Alfred to Magna Carta 24-26 (Routledge, 2d ed. 2018).

[43] Magna Carta, § 39 (1215) (reprinted in Contexts of the Constitution 662 (Neil H. Cogan ed., Foundation Press 1999)). The reader may note the phrase “except by the lawful judgment of his peers,” but, as Baker notes, this phrase did not refer to a jury trial. See Baker, supra n.7 at 548 & n.52.

[44] Of course, historians may point out that John repudiated Magna Carta not long after it was signed. However, Magna Carta set a precedent that was re-adopted by English sovereigns at various times in later years and has become a fundamental aspect of the English Constitution.

[45] Douglas W. Kmiec & Stephen B. Presser, The History, Philosophy and Structure of the American Constitution 26 (Anderson Publishing Co. 1998).

[46] Brockelbank, W.J., The Role of Due Process in American Constitutional Law, 39:4 Cornell L.Q. 561-62 (summer 1954) (quoting 1 Statutes of the Realm 345. Stat. 28 Edw. III cc. 1 and 2 (1335)) (emphasis added). See also Petition of Right (1628) (authored by Sir Edward Coke, noting the enactment under Edward III as following from Magna Carta) (reprinted in Kmiec & Presser, supra n.45 at 49).

[47] U.S. Const. amend. V.

[48] U.S. Const. amend. XIV.

[49] Ala. Const. 1901, Art. I, § 6.

[50] Kerry v. Din, 576 U.S. 86, 91 (2015) (quoting Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 276, 15 L. Ed. 372 (1856)).

[51] Benge v. Williams, 472 S.W. 3d 684, 739 (Tex. App. – Houston [1^st Dist.] 2014) (Jennings, J., dissenting from denial of en banc reconsideration), aff’d, 548 S.W. 3d 466 (Tex. 2018) (emphasis added).

[52] As indicated above, there are numerous other aspects of our day-to-day practice worthy of analysis for its historic lineage. One example would be the commonly-used tool of petitioning for extraordinary “prerogative” writs, such as the writ of mandamus. Under the Alabama Constitution and the legislative enactments flowing from those constitutional provisions, Alabama’s appellate and circuit courts are expressly empowered to issue such writs. See Ala. Const. Art. VI, §§ 140-142 (noting the writ powers of Alabama’s appellate and circuit courts); Ala. Code 1975, §§ 12-2-7 (2&3) (Supreme Court), 12-3-11 (Courts of Appeals). Seeking these writs is a common and familiar process to attorneys in Alabama, as they are in virtually every jurisdiction. One could consider just the numerous petitions for writs of mandamus routinely sought from Alabama’s appellate courts every year on everything from discovery fights to venue decisions to jurisdictional issues and so forth. See Ex parte U.S. Bank Nat’l Ass’n, 148 So. 3d 1060, 1064 (Ala. 2014) (listing several types of decisions concerning which review by mandamus has been deemed appropriate). In so doing, we are, again, engaging legal remedies of an ancient and honorable lineage. See, e.g., Geoffrey C. Hazard, Jr., The Early Evolution of the Common Law Writs: A Sketch, 6 Am. J. Legal Hist. 114 (1962); Baker, supra n.7 at 153-60; Robert H. Howell, An Historical Account of the Rise and Fall of Mandamus, 15 Victoria U. Wellington L. Rev. 127 (1985); see generally Baker & Milsom, Sources of English Legal History (Sir John Baker ed., 2d ed. 2010) (discussing various forms of historic writs from original sources).

Also, while this article focuses on the English historical roots relating to our profession, our laws and legal system were no doubt greatly influenced by other sources – for example, biblical sources, canon law, Roman law, etc. There is certainly no attempt to diminish the impact of such other sources, but they are simply beyond the scope of this article.

[53] John Adams, “Letters of Novanglus No. 7,” Boston Gazette (1774). See Ala. Const. 1901, Art. III, § 42 (providing that “the government of the State of Alabama may be a government of laws and not of individuals”).

[1] See generally Sir John Baker, An Introduction to English Legal History 165-71 (Oxford Univ. Press 2019) (discussing the origins of the law as a profession).

[1] Likewise, as referenced below, speaking of judges as the “bench” is a reference to the ancient practice of judges sitting on a literal bench to hear and decide cases, sometimes with the king present (as in the English Court of King’s Bench discussed below).

[1] Lambdin v. State, 9 So. 2d 192, 193–94 (Fla. 1942) (emphasis added).

[1] State Comp. Ins. Fund v. Drobot, 192 F. Supp. 3d 1080, 1083–84 (C.D. Cal. 2016) (emphasis added).

[1] Hollis v. Crittenden, 251 Ala. 320, 323, 37 So. 2d 193, 195 (1948) (noting that “Alabama is a common law state”) (citing Ala. Code 1940, Title 1, § 3).

[1] Ala. Code 1975, § 1-3-1.

[1] Sir John Baker, An Introduction to English Legal History 16 (Oxford Univ. Press 2019) (discussing the Leges Henrici Primi (c. 1118), which, as Baker points out, was not actually a law code of Henry I). Baker’s quoted discussion of the Leges Henrici Primi actually describes the situation during the first 50 years after 1066, but it is a fairly apt description of the pre-Conquest legal systems in England. The original quote includes a reference to trial by battle, which did not appear until after the Conquest. See John Hudson, The Formation of the English Common Law: Law and Society in England From King Alfred to Magna Carta 114 (Routledge, 2d ed. 2018)). For an excellent summary and discussion of the development of the laws of England, and on the study of those laws, one should certainly read the Introduction to Sir William Blackstone’s masterpiece, his Commentaries on the Laws of England.

[1] See Brockelbank, W.J., Beginners’ Notes on the History of the English Courts, 4:4 Ala. L.J. 249, 252-55 (May 1929).

[1] Id.; Baker, supra n.7 at 20-21.

[1] See Hudson, supra n.7 at 119-22.

[1] Baker, supra n.7 at 16 (“The foundation of the common law is usually traced to the reign of Henry II….”).

[1] See id. at 19; Hudson supra n. 7 at 122-24.

[1] See Baker, supra n.7 at 19; Hudson, supra n.7 at 122-24.

[1] Baker, supra n.7 at 21; Hudson, supra n.7 at 130; Sir Frederick Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I 163 (Cambridge University Press, 2d ed. 1898) (republished by permission by Liberty Fund, Inc.).

[1] Baker, supra n.7 at 189-90; Pollock & Maitland, supra n.14, Vol. 1 at 229-30.

[1] See Baker, supra n.7 at 60-77.

[1] See 1 Lord Campbell, Lives of the Lord Chancellors and Keepers of the Great Seal of England 3 (Soule, Thomas & Wentworth 1874) (“With us the King has ever been considered the fountain of justice.”).

[1] Id. at 4.

[1] Baker, supra n.7 at 115.

[1] Id.

[1] Theodore F.T. Plucknett, A Concise History of the Common Law 161-62 (The Lawyers Co-operative Publishing Co., 2d ed. 1936).

[1] See Baker, supra n.7 at 118-19.

[1] Id.

[1] This right has been expressly recognized in Alabama from the beginning of its statehood. See Ala. Const. 1819, Art. I, § 28 (“The right of trial by jury shall remain inviolate.”).

[1] Ala. Const. 1901, Art. I, § 11.

[1] Baker, supra n.7 at 9; Pollock & Maitland, supra n.14, Vol. 1 at 561-89.

[1] See Baker, supra n.7 at 9, 12; Pollock & Maitland, supra n.14, Vol. 1 at 587; Brockelbank, W.J., Beginners’ Notes on the History of the English Courts, 4:4 Ala. L.J. 249, 250-53 (May 1929).

[1] Hudson, supra n.7 at 59; Pollock & Maitland, supra n.14, Vol. 1 at 151-52; Baker, supra n.7 at 79-80.

[1] Plucknett, supra n.21 at 104.

[1] An “assize,” while initially meaning a type of convening council, eventually came to mean an enactment made at such a gathering. See id. at 106.

[1] Plucknett, supra n.21 at 105-06; Pollock & Maitland, supra n.14, Vol. 1 at 152-54.

[1] See Plucknett, supra n.21 at 106-07; Baker, supra n.7 at 79-80, 242-43.

[1] Plucknett, supra n.21 at 107; Baker, supra n.7 at 242-43.

[1] Plucknett, supra n.21 at 107-08.

[1] Id. at 107.

[1] Id. at 108.

[1] Id. at 112.

[1] Id. at 108-09.

[1] Id. at 109.

[1] Id. at 118-19.

[1] Plucknett, supra n.21 at 127.

[1] See John Hudson, The Formation of the English Common Law: Law and Society in England From King Alfred to Magna Carta 24-26 (Routledge, 2d ed. 2018).

[1] Magna Carta, § 39 (1215) (reprinted in Contexts of the Constitution 662 (Neil H. Cogan ed., Foundation Press 1999)). The reader may note the phrase “except by the lawful judgment of his peers,” but, as Baker notes, this phrase did not refer to a jury trial. See Baker, supra n.7 at 548 & n.52.

[1] Of course, historians may point out that John repudiated Magna Carta not long after it was signed. However, Magna Carta set a precedent that was re-adopted by English sovereigns at various times in later years and has become a fundamental aspect of the English Constitution.

[1] Douglas W. Kmiec & Stephen B. Presser, The History, Philosophy and Structure of the American Constitution 26 (Anderson Publishing Co. 1998).

[1] Brockelbank, W.J., The Role of Due Process in American Constitutional Law, 39:4 Cornell L.Q. 561-62 (summer 1954) (quoting 1 Statutes of the Realm 345. Stat. 28 Edw. III cc. 1 and 2 (1335)) (emphasis added). See also Petition of Right (1628) (authored by Sir Edward Coke, noting the enactment under Edward III as following from Magna Carta) (reprinted in Kmiec & Presser, supra n.45 at 49).

[1] U.S. Const. amend. V.

[1] U.S. Const. amend. XIV.

[1] Ala. Const. 1901, Art. I, § 6.

[1] Kerry v. Din, 576 U.S. 86, 91 (2015) (quoting Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 276, 15 L. Ed. 372 (1856)).

[1] Benge v. Williams, 472 S.W. 3d 684, 739 (Tex. App. – Houston [1^st Dist.] 2014) (Jennings, J., dissenting from denial of en banc reconsideration), aff’d, 548 S.W. 3d 466 (Tex. 2018) (emphasis added).

[1] As indicated above, there are numerous other aspects of our day-to-day practice worthy of analysis for its historic lineage. One example would be the commonly-used tool of petitioning for extraordinary “prerogative” writs, such as the writ of mandamus. Under the Alabama Constitution and the legislative enactments flowing from those constitutional provisions, Alabama’s appellate and circuit courts are expressly empowered to issue such writs. See Ala. Const. Art. VI, §§ 140-142 (noting the writ powers of Alabama’s appellate and circuit courts); Ala. Code 1975, §§ 12-2-7 (2&3) (Supreme Court), 12-3-11 (Courts of Appeals). Seeking these writs is a common and familiar process to attorneys in Alabama, as they are in virtually every jurisdiction. One could consider just the numerous petitions for writs of mandamus routinely sought from Alabama’s appellate courts every year on everything from discovery fights to venue decisions to jurisdictional issues and so forth. See Ex parte U.S. Bank Nat’l Ass’n, 148 So. 3d 1060, 1064 (Ala. 2014) (listing several types of decisions concerning which review by mandamus has been deemed appropriate). In so doing, we are, again, engaging legal remedies of an ancient and honorable lineage. See, e.g., Geoffrey C. Hazard, Jr., The Early Evolution of the Common Law Writs: A Sketch, 6 Am. J. Legal Hist. 114 (1962); Baker, supra n.7 at 153-60; Robert H. Howell, An Historical Account of the Rise and Fall of Mandamus, 15 Victoria U. Wellington L. Rev. 127 (1985); see generally Baker & Milsom, Sources of English Legal History (Sir John Baker ed., 2d ed. 2010) (discussing various forms of historic writs from original sources).

[1] John Adams, “Letters of Novanglus No. 7,” Boston Gazette (1774). See Ala. Const. 1901, Art. III, § 42 (providing that “the government of the State of Alabama may be a government of laws and not of individuals”).

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