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.

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.

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.

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.

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.

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 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 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.