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Unbound, Volume 9 UNBOUND A Review of Legal History and Rare Books Journal of the Legal History and Rare Books Special Interest Section of the American Association of Law Libraries Volume 9 2016 UNBOUND A Review of Legal History and Rare Books Unbound: A Review of Legal History and Rare Books (previously published as Unbound: An Annual Review of Legal History and Rare Books) is published by the Legal History and Rare Books Special Interest Section of the American Association of Law Li- braries. Articles on legal history and rare books are both welcomed and encouraged. Contributors need not be members of the Legal His- tory and Rare Books Special Interest Section of the American As- sociation of Law Libraries. Citation should follow any commonly-used citation guide. Cover Illustration: This depiction of an American Bison, en- graved by David Humphreys, was first published in Hughes Ken- tucky Reports (1803). It was adopted as the symbol of the Legal History and Rare Books Special Interest Section in 2007. BOARD OF EDITORS Mark Podvia, Editor-in-Chief Associate University Librarian West Virginia University College of Law Library P.O. Box 6130 Morgantown, WV 26506 Phone: (304)293-6786 Email: [email protected] Noelle M. Sinclair, Executive Editor Head of Special Collections The University of Iowa College of Law 328 Boyd Law Building Iowa City, IA 52242 Phone (319)335-9002 [email protected] Kurt X. Metzmeier, Articles Editor Associate Director University of Louisville Law Library Belknap Campus, 2301 S. Third Louisville, KY 40292 Phone (502)852-6082 [email protected] Joel Fishman, Ph.D., Book Review Editor Assistant Director for Lawyer Services Duquesne University Center for Legal Information/Allegheny Co. Law Library (retired) 921 City-County Building, 414 Grant Street Pittsburgh, PA 15219 Phone (412)350-5727 [email protected] Ryan Greenwood, Assistant Book Review Editor University of Minnesota Law School Curator of Rare Books and Special Collections Mondale Hall, 229 19th Avenue South Minneapolis, MN 55455 Phone (612)625-7323 [email protected] 4 UNBOUND Vol. 9 TABLE OF CONTENTS DEDICATION Dr. Joel Fishman 5 THE MORRIS L. COHEN STUDENT ESSAY COMPETITION RUNNER-UP The Development of Recusatio Iudicis and the Rise of Aequitas Adam Giancola 7 LEGAL HISTORY Indirect Rule: Law and Questionable Ambitions in British East Africa Hannah Reid 27 Law Book Catalog of Patrick Byrne, Philadelphia Bookseller, 1802 Joel Fishman 69 His Soul is Marching On: An Annotated Bibliography of William Wes- ton Patton, Abolitionist and Educator of Freedmen Douglas W. Lind 111 Constructing Freedom: A Letter by George M. Bibb Concerning the Will of the Rev. Richard Bibb, Sr. Kurt X. Metzmeier 133 BOOK REVIEWS 147 Jus Gentium: Journal of International Legal History 188 INDEX VOLUMES 1-9 191 2016 UNBOUND 5 DEDICATION In 2016 Dr. Joel Fishman retired from Duquesne University/Alle- gheny County Law Library. He had served there for many years, retiring as Associate Director for Lawyer Services. Joel is a prolific author with more than 250 publications to his credit. These include more than 75 books/pamphlets, 75 articles, and 80 book reviews in various library, history, and legal periodi- cals, including this one. He has served as the Book Review Editor for Unbound since it began publication. In addition, he is a past Chair of the American Association of Law Libraries Legal History & Rare Books Special Interest Section. By direction of the LHRB Executive Board and with the enthusias- tic support of the editor, we dedicate this issue of Unbound to Dr. Joel Fishman. We hope that we will continue to see his articles and book reviews in this and other publications for many years to come. 6 UNBOUND Vol. 9 2016 UNBOUND 7 THE MORRIS L. COHEN STUDENT ESSAY COMPETITION 2016 RUNNER-UP The Development of Recusatio Iudicis and the Rise of Aequitas Adam Giancola* In his discussion of the characteristics of the ideal judge, the four- teenth century Neapolitan jurist Lucas de Penna famously wrote: Nullus enim constituendus est judex, nisi sit peritus in jure. Etiam promotus ob defectum scientiae re- movendus est… nam populus, qui non habuit sci- entiam, ductus est in captivitatem… nihil autem tam indignum et impiissimum est quam ignorari jura et leges a magistratibus, qui in re publica prae- sunt… scientia est donum Dei.1 According to Lucas, a judge who proved himself incapable of ad- ministering justice was to be mercilessly removed in order to elim- inate the harm he might impose to the general public. To this end, Lucas saw refusal as a right that belonged to both parties, ex justa causa, to guarantee the impartiality of judgment. From this per- spective, the right to refuse a judge was not exclusively given to * Adam Giancola, BA (Hons), MA, is a 2017 J.D. Candidate at Osgoode Hall Law School of York University, Toronto, Ontario, Canada. He was drawn to the topic of recusatio iudicis in the medieval canon law by its robustness. He wrote that “[i]n Canada, and I suspect also in the United States, there is a strong presumption of judicial impartiality, and the bar required of applicants to succeed on a motion of recusal is a high and onerous one. Coming from this world, then, it was fasci- nating to discover a place and a time where the judge was thought to be just as much subject to the procedural safeguards of justice as were the parties them- selves. Equity was invoked not only as a legal device to be used for a specific remedy, but a concept that informed the very spirit of the law.” 1 C. X, 31, 33, no. 38. 8 UNBOUND Vol. 9 protect the interests of litigants, but also to ensure that a judge- ment was not divorced from the idea of justice.2 The process of refusing a judge, defined in the canon law as ‘recu- satio iudicis,’ has a long history in the Romano-canonical tradi- tion.3 While recusatio has primarily been studied as a procedural tool used by litigants to limit the partiality (and potential corrup- tion) of judges, its development has less frequently been considered as a form of equitable relief administered in order to protect the parties and to ensure fairness at court. This paper examines this particular aspect of recusatio in the canonical tradition. Part I provides a brief discussion of the historical foundations un- derlying the concept of recusatio under the Roman law. Part II then examines the emergence of the concept of recusatio iudicis in the canonical tradition, and describes the gradual steps taken by the canonists to increase the number of grounds for refusal under the decretal collections. Part III specifically looks at the development of recusatio iudicis during the outburst of ordines—or procedural treatises—throughout the thirteenth century. In looking at the works of Tancred and Hostiensis, for example, one sees a tendency by the canonists to characterize recusatio iudicis as a function of equity and fairness. Part IV continues this discussion by looking specifically at William Durantis’ Speculum Iudicale¸ which repre- sented an attempt to systematize a vast quantity of legal procedure into a single corpus. Durantis’ presentation of recusatio iudicii re- veals to an even greater extent an understanding that the refusal of a judge should operate in the service of both equity and fairness. The paper then concludes. 2 C. X, 31, 66, no. 1. “Nam licet in rescripto principis exprimatur, u judex recusari non possit, nihilominus ex justa causa poterit recusari. Recusatio enim species est defensionis, quam, cum sit de jure naturae, princeps in suo rescripto etiam ex- presse tollere nequit.” See generally: Walter Ullman, The Medieval Idea of Law, As Represented by Lucas de Penna: A Study in Fourteenth-Century Legal Schol- arship (London: Methuen & Co, 1946). 3 For a background on the history and development of the principle, see: Linda Fowler, “Recusatio Iudicis in Civilian and Canonist Thought,” Studia Gratiana 15 (1972): 719-785. See also: Boris Bernabé, La récusation des juges: étude médiévale, moderne et contemporaine (Paris: LGDJ Lextenso éditions, 2009). 2016 UNBOUND 9 I. Historical Foundations Linda Fowler has written extensively on the subject of the historical development of recusatio. Fowler found that the Roman ideal of the “professional, state-appointed judge” went hand-in-hand with the concern that suspect judges be promptly removed.4 Recusal was a matter of public utility, and could be used not only to protect the rights of litigants, but also to frustrate an opponent at court.5 While the process of appeal was guaranteed by the ius gentium to offset injuries committed during or after the trial, recusatio took place even before the trial began.6 To succeed in the latter, litigants had to prove that a judge was suspect and unfit to stand trial despite the fact that no injury had yet occurred. In light of this distinction, the Roman legislations governing recusatio ensured that the judge could not be removed easily. In 527, the Emperor Justinian’s edict proclaimed that any litigant that wished to refuse his judge ordi- nary was required to go before the emperor for approval. If consent was granted, the suspect judge would be required to hand over the case to an alternative judge.7 In the Novels, Justinian decreed that a litigant would be given twenty days after the libellus (petition for recusal) was issued, so long as the action took place before the litis contestatio (the contestation of the suit).8 The fundamental characteristic of recusatio under the Roman law was that the civilists never considered it a natural right.9 This fact notwithstanding, the law did allow for defendants to make objec- tions, referred to under the law as “prescriptiones” or “excep- tiones.” Over time, the jurists came to distinguish between the var- ious actions of litigants, and listed “actions” as the weapons of the 4 Fowler, Recusatio Iudicis, 719.
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