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INTRODUCTION TO LAW
GENERAL COMMENTS
This chapter is designed to stimulate the interest of your students in learning about law. To do
so, we provide comparisons to the past and give examples of the evolution of rules and
requirements. The goal is to prompt the student to consider the role of the law in resolving
conflicts within a society that has changed so much in such little time. We try to show that our
legal system has not changed very much; only that the rules of law have changed and continue to
evolve. Thus, we paint a brief picture of society at the beginning of the twentieth century with which
students can compare their own lives and the lives of their families. Hopefully, the picture painted
will stimulate interest in the role of law in a diverse and changing society, and how our legal
system will be expected to cope with the dynamic changes that most assuredly will occur in the
early years of this century.
We discuss a garden variety of societal issues in 1900 to call student’s attention to how
completely different life is now. Our legal system coped well with the changes of the twentieth
century and has empowered itself in the process. We attempt to make students think about the role
of the essentially unelected legal branch in shaping our society. To the extent legislatures and
executives avoid the controversial issues existing in the 1900s as well as now, people look
elsewhere, including to the judicial branch for answers. We define the judicial branch of
government to include members of the legal profession, and thereby expand the dimensions of its
role in everyday life. There are no cases and controversies, and no judicial proceedings and new rules
of law, without the involvement and influence of lawyers. The conclusion is compelling: our society
ultimately may depend upon the judicial branch for most of the significant decisions in the new
century. How the legal system works ought to be of interest to students who are concerned with their
careers, families and opportunities in general, and whose own careers likely will be at their peak
within the next twenty-five years.
Next, we present a thumbnail sketch of the history of U.S. common law in sufficient detail to
give the student a perspective of the ancient and medieval sources of our legal system. We also
begin a discussion on legal reasoning by introducing the common-law principle of stare decisis.
This section of Chapter 1 may or may not excite the average student, but an understanding of our
common law is dependent upon at least a sketchy understanding of its origins including a discussion
of the alternatives presented to a court when applying the doctrine of stare decisis.
We follow the ancient sources with modern sources of law, dramatizing the evolution of the law
We provide a brief introduction to ethics and ethical reasoning to allow those professors who
wish a dialog on the relationship or law and ethics to first clearly make the distinction, and then
continue a discussion of this relationship throughout the book.
The case of Eric J. v. Betty M. raises a troubling topical issue — the duty to act. The law is clear
and largely uniform throughout the states, but troubling to many. The case allows a discussion on
the limits of the law and the importance of ethics. Hopefully you can blend in a discussion of the
introductory legal concepts, and also use ethical reasoning to test student reaction to the legal rule
regarding duty to act. Compared to cases we have used in the past, this is a not a case we expect
you have seen before. The issue in this case is, of course, one that was very important to the
parties to the case, but not one that directly touches the lives of many of the students. Our intent is
to raise important ethical issues without tripping student hot buttons the first week of class.
We have also used the case of Eric J. v. Betty M. to provide an exercise in case briefing. In
Appendix A of the text you will find a discussion of the importance of a brief, and suggestions
on how to brief a case as well as a sample brief. Our book has always depended more on
examples than actual court cases but we encourage professors to add or use their own favorite
cases.
CHAPTER SUGGESTIONS
1. This chapter is introduced during the first day of class when students are acclimating to the
professor, the course syllabus, and to each other. The first week, before any variety of
collaborative teaching methodology can be established, is an effective time to reach back to
the beginning of the 20th century, painting a picture of relative simplicity of society
compared to now. Females could not vote nor obtain a legal abortion in 1900 — today they
can. Cocaine could be purchased in a drug store in New York City in the early 1900s. Times
change and the laws change. Can our students see females winning the legal right to
comparable pay in employment or do they expect females will fall further behind? Do
new changes in affirmative action portend a change in civil rights generally? Should
society discriminate against older workers by replacing them with less costly new
employees? Should the government encourage or discourage the use of off country job
centers for American companies? Should pornography be banned from the Internet? Less
grand: should spam or pop up ads be banned? Can the law be effective in any such ban?
Shall we permit web sites that advocate, promote, and provide kits for murder? Should
access to dangerous chemicals and biological agents as well as instructions on how to use
them to kill be allowed? Should gene alteration to produce only thin people be endorsed by
law, or alteration to allow for choice of a fetus’s gender? Virtually any question beginning
with “Should the law change... (insert some simplified issue)?” is excellent. The goal in the
first or second meeting of the semester is, of course, to stimulate the students to anticipate
learning more about the law and legal system. The earlier our students begin sharing their
opinions in class on controversial issues, the easier it becomes for their classmates to realize
that a standard of objectivity is essential. That standard is, of course, a law.
Introduction to the Law 3
2. (1) In addition to, or as an alternative to, the broad questions suggested above, we assign
designated specific legal terms for subsequent oral definition. (2) Our experience suggests
that all students assigned terms have become involved with the content of the chapter. (3)
Answers are shorter, and directly from the textbook. (4) We have had success in forwarding
questions (with page references) to a number of students via e-mail a day or two before
class. The effect is very positive. It circumvents a phenomenon that some students
experience: becoming speechless when they hear their name called in class. (5) A definition
question could be: define X term. Distinguish it from a related concept. Provide an example
of the definition as it would be used differently than in the text.
3. Finally, we have found that relating current events to issues under discussion is very
helpful. Appellate court opinions lag behind current events by many years, and lose some of
their vitality to students. We never fail to find current events that relate to the subjects in the
chapter and topics under discussion.
4. One method to begin class is to give the student a 10 or 20 question multiple choice test
using questions that you might give them on a final. This pre-test will give both the
students and the professor some idea of what they know and what they will learn. Discussing
the correct answers immediately after having given the examination explores the variety of
topics and learning the will occur over the academic term.
FOR CRITICAL
ANALYSIS Eric J. v.
Betty M.
1. This question asks students to apply the chapter discussion of ethics to an actual problem. Try
to encourage the analysis before the students make a value judgment.
2. The duty to act is a substantive rule and a necessary requirement to prove the tort of
negligence. The case is one of civil law, as the mother is suing on the child’s behalf. The case
is a California or state rather than federal case.
3. No contest means the person is not contesting the charges. In a criminal proceeding it has the
same effect as a guilty plea, except that the plea cannot be used to prove responsibility in a
later civil proceeding.
1. You do not have to predict many years into the future before your predictions get risky. It will
be interesting to hear what students think will happen regarding current terrorist threats and
the variety of existing ways to harm large numbers of people. More mundane topics such as
spam and even identify theft should be interesting to speculate about.
2. Statutory law is prospective and can be broadly created. Common law is specific and
retroactive. Jeremy Bentham’s famous criticism of the common law helps illustrate this
contrast. He referred to the common law as “Dog Law” because it was after the fact.
Something is done and then a person may well be punished for it and told they should have
behaved differently. Some strengths of common law are flexibility, adaptability, and its usual
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“Yes,” she returned; “I have a swelled face.”
“How sorry I am!” said the soldier sympathetically, “for I came this
afternoon in the hope of hearing you sing.”
“And so you shall,” returned the girl kindly. “You shall not go away
disappointed.” And, taking the bandage from her face, she sang
song after song to the fascinated General.
The progress of the courtship was swift, and the marriage was
celebrated with great magnificence in the palatial abode of Queen
Maria Cristina in Paris, with the attendance of representatives of the
most distinguished families of France and Spain.
When General Narvaez returned to Madrid he became Prime
Minister of Spain.
Unfortunately, the marriage did not prove a happy one, and,
indeed, it would have been difficult for anyone to live peacefully with
the irascible Spaniard. This irascibility was seen at the funeral of
General Manso de Zuñiga, who had died in the expedition against
Prim, in the mountains of Toledo. General Narvaez was chief
mourner on the occasion, as the deceased officer had been husband
of Doña Valentina Bouligni, a lady of great importance at this epoch,
with whom he was connected; and the Bishop of Pharsalia was
master of the ceremonies.
At a certain point in the function the order was given to kneel.
But, probably absorbed in some knotty State question, the Duke of
Valencia still stood. Upon this the Bishop quickly approached the
grandee, and said:
“Kneel down, kneel down!”
“But I don’t want to kneel,” returned the General petulantly, and
so he remained standing for the rest of the service.
G E N E R A L N A RVA E Z
When she came to Madrid as the wife of the great General, the
Duchess of Valencia was appointed Lady-in-Waiting to Queen
Isabella, and she never failed in her loyalty to the dynasty which was
in power when she came to the country of her adoption by marriage.
Many years later she was in an hotel in Switzerland, where she
purposed making a long stay, when Don Carlos happened to come
to the same hotel, accompanied by his secretary. As the Duchess of
Valencia was unacquainted with the Pretender to the throne of
Spain, she wondered who the imperious-looking new arrival could
be, who was greeted so respectfully by everybody. Her curiosity was
soon satisfied, for the gentleman’s secretary presented himself
before her to say that the Duke of Madrid begged the honour to pay
his respects to her.
The message filled the Duchess with dismay, for, although she
held the Princes of the blood in great respect, she had no intention of
receiving one who disputed the throne with the reigning Queen.
So, summoning all her dignity to her aid, she said, in a tone of icy
politeness:
“Tell the Duke of Madrid that I am very sorry not to have the
honour of receiving his visit, but to-morrow I leave for Paris.”
And in effect the lady left the hotel on the morrow, and thus the
meeting of one of the oldest and most valued Ladies-in-Waiting with
Don Carlos was avoided.
Isabella certainly never expected that she would be dethroned,
for a few weeks before the revolution of September, 1868, the
celebrated General Tacon, Duke of the Union of Cuba, announced
the forthcoming marriage of his daughter Carolina with the Marquis
Villadarías, of the première noblesse, and a perfect type of a
Spanish grandee, and she said: “I congratulate her sincerely on her
engagement; but,” she added sadly, “for myself I am sorry, as I shall
see her no more at Court.” The Queen here referred to the well-
known Carlist opinions of the Marquis Villadarías, which would have
made it impossible to receive the Marchioness at the palace if she
had remained there.
So Isabella II. was dethroned in 1868, and she can truly be said
to have been the victim of circumstances. From the moment King
Ferdinand died his daughter had been the object of intrigue and
ambition. Whilst our Queen Victoria was carefully educated and
drilled in high principles, Isabella was the prey of those who wished
to rise to power by her favour. Ministers made love to the Sovereign
instead of discussing the welfare of the nation; flowery speeches on
patriotism meant merely the gratification of the orator’s vanity to be
remarked by Her Majesty. Personal advancement was the end and
aim of those in the Government, and thus poor Isabella’s
susceptibilities were worked upon to an awful extent.
It is well known that General Serrano, who might have been
thought to have the welfare of his country at heart, gained an undue
influence over the Queen by means of her affections, and fomented
to a great extent the matrimonial differences between her and her
husband. Generous to a degree, Isabella paid the debts of this
courtier twice, and yet it was this same General who was the first to
have her hurled from the royal palace.
When the great Canning visited Madrid, Bulwer Lytton showed
him at a Court ball the many women who were the favourites of the
Ministers, and there was, indeed, hardly a statesman who would not
sacrifice principles to the pleas of his mistress. It was at this Court,
steeped in immorality, that Isabella was brought up with little or no
knowledge of right and wrong, and even in her marriage she was a
victim to the intrigues and ambitions of other Courts of Europe as
well as those of her own. She was, in fact, a scapegoat of the nation.
Harassed and in desperation at being pressed on to a miserable
marriage destitute of all that could justify it, Isabella, after one of
those long and fruitless discussions with her mother, once addressed
a letter to our Queen Victoria; but in a pure Court like that of England
little idea could be formed of the stagnant atmosphere of the Spanish
palace from which the poor young Queen sent forth her plaint.
Beyond the Court raged the stormy discontent of the country, which
had been thwarted for more than thirty years of the fulfilment of its
constitutional rights promised by Ferdinand VII. as the condition of
his return to the throne of Spain.
Whilst Queen Victoria was daily increasing in the knowledge of
constitutional rights which are the base of a Sovereign’s power, poor
Isabella’s Prime Ministers resigned at any moment in pique or
jealousy of some other politician, and the people grew daily more
discontented at finding the Parliament was a farce, and it meant
neither the progress of the land nor the protection of the people.
Bulwer Lytton was constantly sending despatches to England
about the shortcomings of Isabella II. as a woman, but he seemed to
lay no stress on the cause of her failure as a Queen. Under proper
conditions Isabella doubtless would have been a good woman and a
great Queen, but choked with the weeds of intrigue she was lost.
Undisciplined and uneducated, the poor Queen fell a victim to what,
if properly directed, would have been virtues instead of vices.
The marriage to which Isabella was forced by intrigue was, of
course, the greatest evil which could have befallen such an
impulsive, warm-hearted girl, who knew no more how to turn a deaf
ear to a claimant for her favour than to keep her purse shut to the
plea of an unfortunate beggar.
The Right Hon. Henry Lytton Bulwer wrote a little later from the
British Embassy at Madrid to the Court of St. James’s, saying that he
“looked at the Queen’s conduct as the moral result of the alliance
she had been more or less compelled to contract, and he regarded
her rather with interest and pity than blame or reproach.”
Isabel’s natural intuition of our Queen Victoria’s good heart
prompted her letters to her. They were sent by a private hand, and
who knows what evils might have been prevented in the Court of
Spain if the long journey, so formidable in those days, had not placed
the sister-Queens so far apart?
Espartero’s plea for Isabel to marry Don Enrique de Assisi, the
man of her heart, met no support in a Court torn with intrigue, and
the sad, bad story of Isabel doubtless had its source in the tragedy of
an unhappy marriage. At the plea of a persistent wooer, who knew
that the Queen had the right of dissolving a Ministry, a Government
would fall; and as the station of her favourites became lower and
lower, as time went on the ill-regulated Sovereign had a Government
as undependable as her friends.
Treachery was the keynote of the Court of Spain, and some of
the leaders of the revolution were those who had used the
Sovereign’s ignorance and foolhardiness to their own ends. In such
an atmosphere of untruth and treachery such men as Espartero,
Prim, etc., could play no enduring part. Hardly had Espartero swept
the Court clean of the Regency of Queen Maria Cristina than his fall
was encompassed by O’Donnell, his rival. The flagrant falsification of
the Parliamentary election returns—which is still the cankerworm of
the country—was the check to all progress. Count San Luis made a
primitive effort for the reform of the elections; he suggested that the
names of the candidates as deputies should be put in a bag, and
drawn out by a child blindfolded, for the law of chance seemed to
him better than the custom of deception.
Isabella’s acts of generosity are still quoted with admiration at the
royal palace of Madrid by those who served her as Queen.
Four hundred girls owed their marriage dots to Isabella, and it
was the fathers of these four hundred royally endowed brides who
treacherously worked for her expulsion.
One day, hearing the story of the penury of a clever man of
letters, Isabella commanded 20,000 francs to be sent to him. The
administrator of her finances, thinking the Queen could hardly know
how much money this sum represented, had twenty notes of 1,000
francs each changed into small money, and put out on a table by
which she had to pass.
“What is all this money for?” asked Isabella, when she saw it
spread out to view.
“It is the money for the man of letters, and this shows Your
Majesty how large is the sum of 20,000 francs.”
“So much the better,” was the prompt reply; and the courtier saw
it was not by proving the amount of the boon that he could check his
Sovereign in her generous actions.
A Court official at Madrid, who has been sixty years in office at
the palace, told me he often saw Isabella take off her bracelets, and
give them to the beggars who pressed upon her as she crossed the
courtyard of the royal domain.
“And who could help loving her?” said the old courtier, with tears
in his eyes; “I know I could not.”
Caught in the darkness of ignorance and intrigue, Isabella was
naturally enraged at the revolution. When her son Alfonso was
nearly made captive by the Carlists at Lucar, she said: “I would
rather my Alfonso be a prisoner of the Carlists than a captive of the
revolutionists.”
Isabella had a faithful friend in the Marquis of Grizalba, and he
said to Croze:[18]
“It is the loss of faith which causes our woes; the charm of death
has been destroyed with the hope of a hereafter. But Spain will die
like a gentleman.”
[18] The author of “La Vie intime d’Alfonse XIII.”
EMILIO CASTELAR
1873–1874