Interesting.  According to an article by Beresford (1957), common informers who made money from reporting misdeeds of fellow citizens to the legal system accounted for a substantial proportion of cases in economic law in the 16th and 17th Century England.  Bacon (1939) writes that this was also the case in the early American legal system.

Cited in Black (1973), The Mobilization of Law, Journal of Legal Studies, 130.

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Fascinating article on the rise of judicial elections in the US during the 19th Century by Shugerman of Harvard Law School.  Available on SSRN here.  Here’s the abstract:

Almost ninety percent of state judges today face some kind of popular election. This peculiar institution emerged in a sudden burst from 1846 to 1853, when twenty states adopted judicial elections. The modern perception is that judicial elections, then and now, weaken judges and the rule of law. Indeed, some critics of judicial power in the early republic supported judicial elections for precisely those reasons, but instead, they focused on other more direct attacks on the courts.

Judicial elections swept the country in the late 1840s and 1850s and the key was a new movement to limit legislative power, to increase judicial power, and to strengthen judicial review. Over time, judicial appointments had become more a tool of party patronage and cronyism. Legislative overspending on internal improvements and an economic depression in the early 1840s together had plunged the states into crippling debt. A wave of nineteen states called constitutional conventions from 1844 to 1853, and in addition to direct limits on legislative power, these conventions adopted judicial elections. Many delegates stated that their purpose was to strengthen the separation of powers and to empower courts to use judicial review.

The reformers got results: elected judges in the 1850s struck down many more state laws than their appointed predecessors had in any other decade. These elected judges played a role in the shift from active state involvement in economic growth to laissez-faire constitutionalism. Oddly, the first generation of elected judges were the first to justify judicial review in countermajoritarian terms, in the defense of individual and minority rights against abusive majorities and the “evils” of democracy. This Article concludes with lessons about judicial independence and democracy from this story.

And some key conclusions from the end of the article:

First, judicial elections were not inevitable, but rather arose from a contingent set of events and passionate leaders that reframed the role of the judiciary from a threat to democracy to the protector of democracy.

Second, the concepts of judicial independence and the rule of law were popular and essential to the adoption of judicial elections. Today’s reformers can borrow from the Barnburners’ playbook by arguing that independent courts protect both democracy and law, rather than assuming that the two are inherently in conflict.

Finally, institutional change can move surprisingly fast: Judicial elections swept the nation in five short years, more or less. Perhaps there is another wave on the horizon that will revive the American Revolutions of 1848: a stronger judi‐ ciary for the people, by the people, and more able to stand up to the people when necessary.

The first permanent corruption court was established in 150 BC in Rome.  It has a civil procedure and senators as jurors.  In 122 BC the court the procedure became criminal and the jurors equities (a class of citizens drawn from the cavalry).  Berry notes that the court became a political battleground between the senators and equities and thus in 81 BC the courts were reformed and senatorial juries were re-established.  During his prosecution of Verres, a corrupt former Governor of Sicily, Cicero dramatically illustrates the influence of these changes in order to appeal to the senatorial jury’s sense of justice and their need for political legitimacy:

I will tell the Roman people how it is that, when juries consisted of equestrians, there was for nearly fifty years not even the least suspicion of a juror ever having accepted a bribe in return for giving a particular verdict; how it is that, once the courts had been transferred to the senatorial order and the Roman people’s control over each one of you had been removed, it was possible Quintus Calidius to declare on his conviction that nat ex-praetor could be convicted honourably for less than three million sesterces … (para 38)

This prompts me to tell you of a remark which I recently made … when the rejection of jurors was being held … I said that I thought that there would come a time when foreign peoples would send delegations to Rome to request that the extortion law and this court be abolished.  For if there were no courts, they believe that each governor would only carry off enough for himself and his children.  With the courts as they are now, on the otehr hand, they reckon that each governor carries away enough for himself, his advocates, his supporters, the president of the court, and the jurors — in other words, an infinite amount. (para 41).

Cicero, In Verrem I in D. H. Berry (tr) Cicero: Political Speeches (OUP, Oxford 2009).

Hobbes on the ideal, good judge (in Leviathan, Of Civil Law, para 28):

The things that make a good judge, or good interpreter of the laws, are, first, a right understanding of that principal of law of nature called equity; which depending not on the reading of other men’s writings, but on the goodness of a man’s own natural reason, and meditation, is presumed to be in those most, that have had most leisure, and had the most inclination to meditate thereon. Secondly, contempt of unnecessary riches, and preferments.  Thirdly, to be able in judgment to divest himself of all fear, anger, hatred, love and compassion.  Fourthly, and lastly, patience to hear; diligent attention in hearing; and memory to retain, digest, and apply what he hath heard.

Hobbes on civil law

December 27, 2009

Hobbes’s Leviathan includes an amazing chapter on law: Of Civil Law (Chapter XXVI). It comes in Part 2: Of Commonwealth, where Hobbes lays out how man escapes the evils of the state of nature by forming communities under a sovereign, i.e. the leviathan.  Eight main points summarise his system of law:

  1. The legislator in all commonwealths, is only the sovereign, be he one man, as in a monarchy, or one assembly of men, as in a democracy, or aristocracy.
  2. The sovereign of a commonwealth, be it an assembly, or one man, is not subject to the civil laws.
  3. When long use obtaineth the authority of a law, it is not the length of time that maketh the the authority, but the will of the sovereign signified by his silence.
  4. The law of nature, and the civil law, contain each other, and are of equal extent. For the laws of nature, which consist in equity, justice, gratitude, and other moral virtues on these depending, in the condition of mere nature are not properly laws, but qualities that dispose men to peace, and obedience.
  5. If the sovereign of one commonwealth, subdue a people that have lived under other written laws, and afterwards govern by the same laws, by which they were governed before; yet those laws are the civil laws of the victor, and not of the vanquished commonwealth. For the legislator is he, not by whose authority the laws were first made, but by whose authority they now continue to be laws.
  6. [T]he two arms of a commonwealth, are force and justice; the first whereof is in the king; the other deposited in the hands of the parliament.
  7. In all courts of justice, the sovereign is he that judgeth: the subordinate judge, ought to have regard to the reason, which moved his sovereign to make such law.
  8. [T]hat the law is a command, and a command consisteth in declaration … we may understand, that the command of the commonwealth, is law only to those, that have means to take notice of it.

City of Vice

December 26, 2009

Fantastic historic drama on the establishment of a modern, urban police force in 18th Century London–the Bow Street Runners.  Channel 4 website found here.