History query - "Rule absolute"
basho007
Could anyone explain please what was meant in older judgements when an
English court used the phrase "rule absolute"?
Example
"Having, however, said so much in expression of my own feelings, I have
only to declare that consistent with the rules of this court, we cannot
make this rule absolute, and therefore it must be discharged, but, under
all the circumstances, without costs." (Cockburn, CJ, Reg. v. Calthorpe, 10
June 1863.)
This has fallen out of use, although when or why is not clear.
thanks for any assistance,
b.
Ben
Well believe it or not some of the courts in the United States that have a
British heritage and are so far removed from the main stream and may not
even have electricity still use the term today. What "rule absolute" means
is "mandatory." Just like when the defendant says "But judge I can't work on
the chain gang 'cause I got the arthritis." and the judge says "Too bad its
rule absolute." , i.e. mandatory.
Andrew McGee
"Ben" <Ju...@yahoo.com> wrote in message
news:445bfeff$0$1006$39ce...@news.twtelecom.net...
But in the context of the old English Reports that is not at all what it
means.
Historically English Law struggled to find proper processes for dealing with
appeals against jury verdicts .
In the 18th century a practice grew up of applying to the trial judge for a
new trial (not the same thing as an appeal, I know) on the basis that the
judge had misdirected the jury, or, later, that the verdict was 'against
evidence' i.e. that the jury had come to a perverse verdict.
A judge who thought there might be something in this would make a
provisional order for a new trial, known as a 'rule nisi' ('nisi' is Latin
for unless,) and in this context the order meant that there would be a new
trial unless a sort of appeal court, usually consisting of all the judges of
that dvision of the court - including the judge who had made the original
ruling, ordered otherwise after further argument.
The sittings of the full court of the divsion, referred to as asitting 'en
banc' would be held at the end of each legal Term, when all the judges
would spend a week or two in effect reviewing the difficult cases fromthe
previous term.
Counsel for the party complaining about the verdict were said to appear 'in
support of the rule'. and the other side would also be represented in
further legal argument as to whether the complaints were justified and a new
trial was warranted.
At the end of the argument the court would either decide that the original
trial was flawed, in which case the rule nisis would be come a rule
absolute, and a new trial would be ordered, or would decide that the
complaints about the original trial were not justified, in which case the
rule would be discharged and the original verdict would stand.
This practice continued in common law courts despite the Common Law
Procedure Act 1852, which reformed many aspects of common law procedure, but
it disappeared IIRC after the implementaton of the Judicature Acts 1873-75
which formally merged common law and equity courts and put in place a more
rational appellate structure, which survives very largely intact to the
present day.
Andrew McGee
basho007
news:445bfeff$0$1006$39ce...@news.twtelecom.net:
many thanks, I will look for some US references.
I've seen the word "rule" used in Bangladeshi courts, which follow Common
Law tradition. The references are to "suo moto rule".
It seems that "rule" might refer to the decision, the judgement, the
legal basis of the judgement.
In Bouvier, there is a sense that the rule is the "order" of the Court.
"rule absolute" in this sense seems to be the final order.
I am looking for more citations to make the connection.
Seems to be a usage of language that dropped away in England in the 19th
Century.
Barney
basho007
news:QOOdna354-M...@bt.com:
many thanks - this is really helpful. Rule nisi was another term I was
unsure of. Difficult to grasp without understanding the end of term
convocation of judges.
Some US federal courts still sit en banc, I think, when overruling a
circuit precedent.
But the practice has disappeared in England as far as I know.
perhaps this still happens, but without any formal business relating to
cases being considered?
It seems fair to conclude, that the "rule" as used in this sense refers
to the court's final order (as opposed to its judgement?)
not much is written about the "order" in legal scholarship.
Andrew McGee
It came mostly from my own studies of the English Reports over the past
quarter of a century; I might be able to find something in a legal history
textbook if I look hard enough, though.
"Barney" <not_a_rep...@nowhere.com> wrote in message
news:445c78ae$0$1013$39ce...@news.twtelecom.net...
Barney
> quarter of a century; I might be able to find something in a legal history
> textbook if I look hard enough, though.
Great! It is so good in fact that I posted a copy of it to the Wikipedia but
one of the sysops or sysbots removed your name. What I need is a way to
reference it either by citing a reputable publication or you as the author
such that your credentials or proof of expertise can be notated and
preferably linked to online. I apologize for this asking you to endure this
inconvenience since I believe that your comments are accurate and
authoritative while the Wikipedia rules are extremely strict Thanks in
advance.