The Law of the Land: The Evolution of Our Legal System

The Law of the Land: The Evolution of Our Legal System

by Charles Rembar
The Law of the Land: The Evolution of Our Legal System

The Law of the Land: The Evolution of Our Legal System

by Charles Rembar

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Overview

National Book Award Finalist: “A learned, thoughtful, witty legal history for the layman” (The New Yorker).

What do the thoughts of a ravenous tiger have to do with the evolution of America’s legal system? How do the works of Jane Austen and Ludwig van Beethoven relate to corporal punishment? In The Law of the Land, Charles Rembar examines these and many other topics, illustrating the surprisingly entertaining history of US law.
 
Best known for his passionate efforts to protect literature, including Lady Chatterley’s Lover, from censorship laws, Rembar offers an exciting look at the democratic judicial system that will appeal to lawyers and laymen alike. From the dark days of medieval England, when legal disputes were settled by duel, through recent paradigm shifts in the interpretation and application of the legal code, The Law of the Land is a compelling and informative history of the rules and regulations we so often take for granted.

Product Details

ISBN-13: 9781504015660
Publisher: Open Road Media
Publication date: 07/21/2015
Sold by: Barnes & Noble
Format: eBook
Pages: 439
Sales rank: 828,099
File size: 1 MB

About the Author

Charles Rembar (1915–2000) was an American lawyer. Born and raised in New Jersey, he earned his bachelor’s degree from Harvard University in 1935 and his law degree from Columbia University in 1938. He spent several years working for New Deal agencies before serving in the US Army Air Corps during World War II. Rembar is best known as a constitutional- and First Amendment–rights lawyer. His work representing Henry Miller’s Tropic of Cancer, D. H. Lawrence’s Lady Chatterley’s Lover, and John Cleland’s Fanny Hill played a major role in changing the nation’s approach to obscenity and censorship laws. His book The End of Obscenity: The Trials of Lady Chatterley, Tropic of Cancer & Fanny Hill by the Lawyer Who Defended Them (1968) won the George Polk Award in journalism. Perspective (1975) is a collection of essays, and The Law of the Land: The Evolution of Our Legal System (1980) is a legal history of Western Europe and the United States.

Rembar also founded a law firm, Rembar & Curtis, which represented well known writers such as Norman Mailer, Tom Clancy, Herman Wouk, and Louise Erdrich.
 
Charles Rembar (1915–2000) was an American lawyer. Born and raised in New Jersey, he earned his bachelor’s degree from Harvard University in 1935 and his law degree from Columbia University in 1938. He spent several years working for New Deal agencies before serving in the US Army Air Corps during World War II. Rembar is best known as a constitutional- and First Amendment–rights lawyer. His work representing Henry Miller’s Tropic of Cancer, D. H. Lawrence’s Lady Chatterley’s Lover, and John Cleland’s Fanny Hill played a major role in changing the nation’s approach to obscenity and censorship laws. His book The End of Obscenity: The Trials of Lady Chatterley, Tropic of Cancer & Fanny Hill by the Lawyer Who Defended Them (1968) won the George Polk Award in journalism. Perspective (1975) is a collection of essays, and The Law of the Land: The Evolution of Our Legal System (1980) is a legal history of Western Europe and the United States.

Rembar also founded a law firm, Rembar & Curtis, which represented well known writers such as Norman Mailer, Tom Clancy, Herman Wouk, and Louise Erdrich.
 

Read an Excerpt

The Law of the Land

The Evolution of Our Legal System


By Charles Rembar

OPEN ROAD INTEGRATED MEDIA

Copyright © 1980 Charles Rembar
All rights reserved.
ISBN: 978-1-5040-1566-0



CHAPTER 1

The Blessed Man and the Arguably Admirable Tiger


PROLOGUE

There once was a man blest with an extraordinary ability to enjoy life. He was strong and skilled and healthy. His body served him well. His eyesight and hearing were excellent; all his nerve endings — tactile, olfactory, gustatory — were fine-tuned. He began at a level some of us achieve only on alcohol or drugs or sea air. He loved trees, mountains, snowflakes, ocean waves, the ruddy turnstone, the scarlet tanager (especially the female, who is not scarlet), basketball, soccer (these for playing, not so much for watching), good fresh bread with good fresh butter, certain wines, certain paintings, a great variety of music, Maryland crabmeat, brisket of beef, quite a few books, and several people. He didn't care much for the Broadway theater or hominy grits, judging the potential in the one case sadly untapped and in the other somewhat limited, but he allowed that on occasion they could be interesting, even pleasurable.

This attitude toward the Broadway theater and hominy grits went to the essence of his character. He could find pleasure in things which, on the whole, he judged not good. "There will ordinarily be something that is handsome, or sounds funny, or increases one's knowledge," he would say, "in the most unlikely situations." He was not merely being cheery. "I am no foolish optimist," he would add, when challenged. "What I'm saying doesn't make everything okay. Things these days are pretty rotten. But nothing is unmixed. Even where the net effect is disagreeable or downright bad, some element may yield aesthetic pleasure or laughter or enlightenment. This isn't faith or credo; it's just a fact of life. One may as well be open to it." And with his health and strength and splendid sensibilities, he could practice what he preached. He had his share of misfortunes (though his share was smaller than the shares of some), but his misfortunes did not paralyze or blind him. He almost always found a tremor of delight.

One day he was walking in the jungle. He liked the jungle very much. Its dark beauty he thought special, its dangers overrated. Suddenly he spied a tiger, perhaps twenty yards away. At first the tiger, his attention fixed on something elsewhere that seemed interesting, even edible, did not see the man. The man's quick brain spun off some thoughts. "The dangers of the jungle, I have maintained, are exaggerated, but they exist. In this unlucky happenstance I have encountered one of them, the worst perhaps. Here we have a lesson in the weakness of generalization — the ultimate fallacy, from a personal point of view, of statistical analysis. The fallacy is insufficiently recognized, and if I should survive, I shall have an illustration on which to build a chapter, or at least a footnote, in my new book. The chances of getting killed on a jungle walk are less than on a motor trip. Very few people who come here suffer any harm — a tiny minority, really. We must keep in mind, however, that it is hard and often perilous to belong to a minority."

Just about this time the tiger turned, stirred by ideas he felt but could not quite identify. He saw the man, and the man saw that the tiger saw him. "I am finished," thought the man. "I am famished," thought the tiger.


I

The man did not resign, however. He reviewed the possibilities. So did the tiger. "If I make a move," said the man to himself, "my chances will be even less than if I stand here." "I hope he doesn't try to run," said the tiger to himself; "the speed of an undernourished tiger, at any distance more than twenty yards, is less than commonly believed."

The tiger made three long leaps and sprang. "Magnificent," thought the man. "What grace and power! How superior to human athletes, even to ballet dancers. This beast is beautiful, and I have managed to catch him at his best. How many people have been privileged to witness such a sight? Too bad, I won't be able to tell anyone about it. Too bad, more broadly, that I have to die. And probably a painful death. But there's no denying the experience."

In fact, it was not painful. The tiger's aim was accurate. The man's neck broke clean. Unconsciousness and death arrived at once.


II

Thoughts fly quickly, quicker than a tiger's leap. The man's thoughts were in the air as the tiger raced. He was not an insensitive tiger. And he was a tiger whose ego, in that season, badly needed shoring up. His wife had been complaining about the lack of food around the cave, refusing to concede that these were times when prey was tight. "You're supposed to be the meat-winner around here," she would remind him. And then that smirking line she was so fond of, which he never once considered funny: "You call yourself a tiger."

The last time they had this kind of conversation, the tiger got so upset he lost his customary dignity. His voice rose in pitch to petulance. He almost meowed. "I've had a run of bad luck lately," the tiger said. "Crap," said his wife.

Passing through space that was charged with the man's thoughts, the tiger felt their substance. He couldn't quite get the language, but the sense and mood were clear. "Gee," said the tiger to himself, "here's someone who really likes me. And in such trying circumstances. How fair of him. What a nice person." In that split second the tiger decided he would spare the man. He swerved, and narrowly flew by. Not many landbound creatures would be able to perform that maneuver at such a speed. It was a close thing, though, and had the tiger not simultaneously pulled in his claws, there might have been some damage. But as it was the man felt just a rush of air, and a light brush of fur. "A pleasant tactile sensation," he observed.

The tiger stopped where his great leap ended, well beyond the man and off to one side. He turned and tried to smile, forgetting for the moment that cats cannot smile. But the man understood, or thought he did. He smiled, and waved his thanks, and walked away. The farther he walked, the faster he walked.


III

As the tiger, bounding forward, gathered in his target's thoughts, he had some thoughts of his own. "Flattery is a deadly weapon. Even with honest, well-intentioned laudatory statements, one must be on guard. This man is perceptive, and has remarkable detachment — a most extraordinary human — and he's put me in a better mood than I've been in for quite a while. It's a shame he has to die. For myself, I would go hungry longer. I could wait for one of those stupid antelopes, who annoy me with their speed and caution. But I've got to think of the wife and cubs." The tiger kept his course and struck.


IV

The racing tiger reminded himself of the power and danger of flattery, but realized right away they ought to be discounted. "On balance, I'd prefer to see him live. Not only do I like him, but if I let him live he'll talk. This is my chance for immortality, which after all is nobler than a full stomach. As for the wife, she should try to think of it as staying on a diet. As for those pampered cubs, a glimmer of how things were in the Depression will do them good."

And so the tiger swerved, and the man's fine eyes remarked the swerve, and the man survived to tell the tale. He not only told it, but he wrote it, and appeared on television to discuss it. The tiger became one of the most famous tigers that ever lived, a model of kindness and athleticism, a culture hero for a time.


V

The tiger, as he leaped, cut through all these thoughts, rolled them to either side in waves, made a wake of them. He had a duty to his family; he was very hungry himself. It would be unnatural to be diverted. He went straight for the man's throat. As the tiger made his final leap, the man moved slightly to his left — a superb move, nicely timed, just far enough, not gross. The man felt the rush of air but nothing else; the claws, stretched as far as they could go, never touched him.

It happened that the man was standing in front of a sturdy jungle tree — something the tiger had not noticed, or, if he noticed, deemed not pertinent. His urgent lunge carried him head on into it. Only his fine skeletomuscular construction kept the tiger from being killed. He was plenty knocked out.

The man looked around, and saw what happened. "Wow!" he said, his heart going like a runaway pile driver. "What an event! But I'd better be going, fast, before that beast recovers." He sprinted all the way to the edge of the jungle and a far distance out of it.

The tiger after a while came to. He dragged himself home, and got the kind of welcome he had lately come to expect. "Don't put on that tired, injured look," said his mate. "If you think your job is tough, you might try staying home with these wild hungry cubs of yours, and do everything else I have to do besides."

"I've got a headache," said the tiger.

"Oh shut up," said she.


VI

Taken with a fit of kindness and the hope of immortality, the tiger, in midair, tried to change his course. His coordination was not quite good enough. He hit the man, not the direct clean hit he would have made if he hadn't tried to swerve, but just enough to inflict a nasty wound that would deny the man his favorite sports for half a year or more.

The man felt pain, both in his battered flesh and in his disillusioned soul. "What an oaf," he thought. "Not nearly so adept as I imagined. I may expect to be confined, for months and months, to pleasures mainly passive. It is bitter, but, I must admit, enlightening as well: tigers are much better in intention, and less good in execution, than they're supposed to be. But will the beast commence a new assault, now single-minded, furious because he has made so lubberly a move? How far does his animal kindness go?"

There was no new assault. The tiger had no heart for it. To his other woes, which he could reasonably assign to the world about him, he had added one that came only from within. "Everybody can make a mistake," he tried to argue. "The best of us have bad days. Consider Justice Holmes, deciding that organized baseball is not a business. Consider Henry II and Becket." But like all true competitors, he found no comfort in such observations; one-time-at-bat-is-not-a-season is a truth but not a solace. He couldn't bring himself to start from scratch and kill the man he should have killed the first time round or altogether spared. It would just be messy; it had no class; he slunk away.

When the tiger got home, his mate, having sent the cubs to visit and busy cleaning up, turned to greet him: "How many times do I have to tell you not to come in tracking blood? But I take it you finally got us something to eat?" "No, I didn't," answered the tiger miserably.

This time she did not snarl. She searched the tiger's face in a way he wasn't sure he understood. "Well," she said, "I guess things are tough for other families in the jungle too. Prey is tight these days. Don't feel so bad." They were silent for a moment. "C'mere," she said.


EPILOGUE

The book to which the man had fleetingly adverted was a book of history. Immediately after the event described — that is, the event as last described — he resumed his work on it. The publisher, he reflected, had paid him an advance. Suppose he had been eaten by the tiger. He would leave no more than notes and ruminations. His estate would have a hard time keeping the advance. Not to mention the morality of it.

The contemporaneous cogitation the incident provoked had gone to the weakness of statistics and the hazards that minorities confront. But other thoughts, jarred loose from his unconscious, now floated to the surface. "The most prominent, and the least accepted, feature of the universe is its complication," he wrote (in draft). "Nothing is unmixed. There are more factors than we can comprehend, or wish to comprehend, an enormity of factors. Things are neither apocalyptic, as a certain writer is fond of saying, not yet anyway, nor bully, as a certain President was fond of saying. Being wrong," he added, "does not exclude an excellence in writing, though it is a serious disadvantage in a President. Things are just terribly, terribly entangled. Not crazy, not chaotic, but almost insupportably complex. Take the warring schools of history. They may none of them be right; they may, more likely, all of them be right.

"There's something else to learn from what I've just been through," he continued. "Spinoza said — I think he said; I was very young when I read it — there's no such thing as 'possible' or 'likely.' If we had all the facts and made no errors in our logic, we could be sure of what will happen, which is bound to happen anyway. The same for what has happened in the past. The point made by Spinoza — or was it Crescas? — is brilliant, but has not much utility. In the lives we lead, a rigid determinism, whatever its philosophical validity, merely dissipates our energies. For human purposes (or purposes tigrine), it's better to acknowledge this, and not shy away from 'probably' and 'maybe.'

Indeed, unless we wish to swindle ourselves, the acknowledgment is necessary. Understanding how things are, or were, must include a range of chances. And speaking of philosophers, I would like Descartes better if he had said, 'I think I think; therefore I think I am.'"

Inspired by the encounter, and chairbound by his injury, the man in a brief few months delivered to his publisher a splendid manuscript. That is, if the tiger missed. Otherwise, the man's secretary took the unfinished material he had written, added a few things of her own, and sent it in. The publisher didn't really care which way it was. "It's how you sell the book that counts," he always said.

CHAPTER 2

Battle


Ashford came before the King's Justices and charged Thornton with murder. He swore that Thornton, "not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil," had raped Ashford's young sister Mary, and then "did take the said Mary Ashford into both hands and cast her into a pit of water," so that she drowned. Thus did Thornton "kill and murder against the peace of our said lord the king his crown and dignity."

The charge was set out in a writing, at the foot of which Ashford put his mark. When it was presented, the Justices ordered the sheriff of Warwickshire to "attach Thornton by his body, according to the law and custom of England, so that we may have him before us on the morrow of All Souls."

The sheriff found Thornton and brought him to court. Ashford was there. The Justices commanded Thornton to plead to the charge. Thornton replied:

Not guilty; and I am ready to defend the same by my body.


"And thereupon," the scribe tells us, "taking his glove off, he threw it upon the floor of the court."

This was a signal that Thornton demanded trial by battle. He would have the truth of Ashford's charge tested in combat between the two of them. If Ashford won the battle, Thornton would be guilty, and (assuming he survived the battle) Thornton would be hanged. If Thornton won, he would be adjudicated innocent, cleared of the charge of having murdered Mary, and of course not liable for the mayhem or killing of his accuser. It would be possible, indeed, for Thornton to have done away with two Ashfords, sister and brother, without legal retribution, the one killed in passion or in fear, the other by due process of law.

Ashford first claimed the circumstances were exceptional, so that Thornton should be denied the right to defend himself by battle. The Justices were not persuaded, and ruled that the established procedure for cases of this kind must be followed — that is, trial by battle.

Ashford then asked for a few days' time. It was granted. On the day appointed, he returned to court and said he would not fight. The judgment, therefore, necessarily, was that Thornton should go free.


It was not the age of the Normans or the Plantagenets, or even the Lancastrians. The case arose in the century preceding our own. The year was 1818.

A hundred and fifty years had passed since Newton set forth his Principia; in less than a hundred more, we would have Einstein's theory of relativity. The steam engine had been at work for exactly half a century, and had made a locomotive run on rails and a boat go up and down the Hudson. Darwin would soon embark upon his voyage. In sixty years the telephone would ring.

All the Beethoven symphonies except the Ninth had been performed. Jane Austen's life was over. Soon the French Impressionists would be at work. It was the year of Karl Marx's birth. Abraham Lincoln was a tall young boy. The United States Constitution and its Bill of Rights had been in force for almost thirty years. In 1818 Thornton established his innocence with his glove; seventeen years later Mark Twain, who made such things so laughably archaic, was born, and half a dozen after that, the symbol of modern rational jurisprudence, Mr. Justice Holmes.


(Continues...)

Excerpted from The Law of the Land by Charles Rembar. Copyright © 1980 Charles Rembar. Excerpted by permission of OPEN ROAD INTEGRATED MEDIA.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents

Contents

1 The Blessed Man and the Arguably Admirable Tiger,
2 Battle,
3 Taxonomy,
4 The Hue and Cry, the Feud, Ordeal and Compurgation,
5 The Start of Trial by Jury,
6 Grand and Petty,
7 A Little Writing,
8 Transgressions, Parliaments, and Trespass on the Case,
9 Fiction,
10 Pleading,
11 The Old New Rules,
12 Equity,
13 Evidence,
14 The Rights of the Accused,
Acknowledgment,
Some Notes on Sources,
Index,
About the Author,

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