Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P45 pot

receive hereditary fiefs, and thus began the reign of feudalism. In 1066 William the Conqueror invaded England from France and spread the feudal framework across the land. The feudal relationship between lord and vassal became the linchpin of English society. To become a vassal was no disgrace. Vassals held an overall status superior to that of peasants and were considered equal to lords in social status. They took leadership positions in their locality and also served as advisers for lords in feudal courts. The price of a vassal’s power was allegiance to the lord, or fealty. Fealty carried with it an obligation of service, the most common form being knight service. A vassal under knight service was obliged to defend the fief from invasion and fight for a specified number of days in an offensive war. In wartime, knight service also called for guard duty at the lord’s castle for a specified period of time. In lieu of military service, some vassals were given socage, or tenure in exchange for the performance of a variety of duties. These duties were usually agricultural, but they could take on other forms, such as personal attendance to the lord. Other vassals were given scutage, in which the vassal agreed to pay money in lieu of military service. Priests received still other forms of tenure in exchange for their religious services. A lord also enjoyed incidental benefits and rights in connection with a fief. For example, when a vassal died, the lord was entitled to a large sum of money from the vassal’s heirs. If the heir was a minor, the lord could sell or give away custody of the land and enjoy its profits until the heir came of age. A lord also had the right to reject the MARRIAGE of an heiress to a fief if he did not want the husband as his vassal. This kind of family involvement by the lord made the feudal relationship intimate and complex. The relationship between a lord and a vassal depended on mutual respect. If the vassal refused to perform services or somehow impaired the lord’s interests, the lord could file suit against the vassal in feudal court to deprive him of his fief. At the same time, the lord was expected to treat the vassal with dignity, and to refrain from making unjust demands on the vassal. If the lord abused the vassal, the vassal could break faith with the lord and offer his services to another lord, preferably one who could protect the vassal against the wrath of the defied lord. Predictably, the relationship between lord and vassal became a struggle for a reduction in the services required by the fief. Lords, as vassals of the king, joined their own vassals in revolt against the high cost of the feudal arrangement. In England, this struggle culmi- nated in the MAGNA CARTA, a constitutional document sealed by King John (1199–1216) in 1215 that signaled the beginning of the end for feudalism. The Magna Carta, forced on King John by his lords, contained 38 chapters outlining demands for liberty from the Crown, including limitations on the rights of the Crown over land. Other circumstances also contributed to the decline of feudalism. As time passed, the power of organized RELIGION increased, and religious lea- ders pressed for freedom from their service to lords and kings. At the same time, the development of an economic wealth apart from land led to the rise of a bourgeoisie, or middle class. The middle class established independent cities in Europe, which funded their military with taxes, not land-based feudal bonds. Royal sovereigns and cities began to establish parliamentary governments that made laws to replace the various rules attached to the feudal bond, and feudal courts lost jurisdiction to royal or municipal courts. By the fourteenth century, the peculiar arrangement known as feudalism was obsolete. Feudalism is often confused with manorialism, but the two should be kept separate. Manorialism was another system of land use practiced in medieval Europe. Under it, peasants worked and lived on a lord’s land, called a manor. The peasants co uld not inherit the land, and the lord owed them nothing beyond protection and maintenance. Feudalism should also be distinguished from the general brutality and oppression of medieval Europe. The popular understanding of feudalism often equates the bloody con- quests of the medieval period (500–1500) with feudalism because feudalism was a predomi- nant social framework for much of the period. However, feudalism was a re latively civil arrangement in an especially vicious time and place in history. The relationship of a vassal to a lord was servile, but it was also based on mutual respect, and feudalism stands as the first systematic, voluntary sale of inheritable land. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FEUDALISM 429 The remains of feudalism can be found in contemporary law regarding land. For example, a rental agreement is made between a landlord and a tenant, whose business relationship echoes that of a lord and a vassal. State property taxes on landowners resemble the services required of a vassal, and like the old feudal lords, state governments may take possession of land when a landowner dies with no will or heirs. FURTHER READINGS Amt, Emilie, ed. 2000. Medieval England 1000–1500:A Reader. Toronto: UTP Higher Education. Boureau, Alain. 1998. The Lord’s First Night: The Myth of the Droit de Cuissage. Lydia G. Cochrane, trans. Chicago: Univ. of Chicago Press. Chen, Jim, and Edward S. Adams. 1997. “Feudalism Unmodified: Discourses on Farms and Firms.” Drake Law Review 45 (March). Available online at http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=1418690; website home page: http://papers.ssrn.com (accessed July 24, 2009). Dunbabin, Jean. 2000. France in the Making: 843–1180. Oxford: Oxford Univ. Press. Ganshof, F.L. 1996. Feudalism. Philip Grierson, trans. Toronto: Univ. of Toronto Press. Hoyt, Robert S., and Stanley Chodorow. 1976. Europe in the Middle Ages. 3d ed. New York: Houghton Mifflin Harcourt. Lazarus, Richard J. 1992. “Debunking Environmental Feudalism: Promoting the Individual through the Collective Pursuit of Environmental Quality.” Iowa Law Review 77. Available online at http://www. law.georgetown.edu/faculty/lazarus/docs/publications/ Lazarus_Debunking_Environmental_Feudalism_1992. pdf; website home page: http://www.law.georgetown. edu (accessed July 24, 2009). CROSS REFE RENCE English Law. FIAT [Latin, Let it be done.] In old English practice, a short order or warrant of a judge or magistrate directing some act to be done; an authority issuing from some competent source for the doing of some legal act. One of the proceedings in the English BANKRUPTCY practice: a power, signed by the lord chancellor and addressed to the court of bankruptcy, authorizing the petitioning creditor to prosecute his complaint before that court. By the statute 12 & 13 Vict., c. 116, fiats were abolished. Arbitrary or authoritative order or decision. F.I.C.A. An abbreviation for the Federal Insurance Con- tributions Act (26 U.S.C.A. § 3101 et seq. [1954]), which established the Social Security tax on income received in the form of wages from employment. FICTION An assumption made by a court and embodied in various legal doctrines that a fact or concept is true when in actuality it is not true, or when it is likely to be equally false and true. A LEGAL FICTION is created for the purpose of promoting the ends of justice. A COMMON-LAW ACTION , for example, allowed a father to bring suit against his daughter’s seducer, based on the legal fiction of the loss of her services. Similarly, the law of torts encompasses the legal fiction of the rule of VICARIOUS LIABILITY, which renders an employer responsible for the civil wrongs of his or her employees that are committed during their COURSE OF EMPLOYMENT. Even though the employer generally is uninvolved in the actual act constituting the tort, the law holds the employer responsible since, through a legal fiction, he or she is deemed to be in direct control of the employee’s actions. A seller of real estate might, for example, be liable in an action for fraud committed by his or her agent in the course of a sale. FICTITIOUS Based upon a fabrication or pretense. A fictitious name is an assumed name that differs from an individual’s actual name. A fictitious action is a lawsuit brought not for the adjudication of an actual controversy between the parties but merely for the purpose of obtaining the opinion of the court on a particular point of law. FIDELITY BOND An insurance device in the form of a personal guaranty that protects against loss resulting from disreputable or disloyal employees or other individuals who possess positions of confidence. A bank might, for example, insure itself against losses deliberately or negligently caused by their officers and staff through the execution of a fidelity bond. If such losses occur, the amount of the bond is forfeited to reimburse the losses. FIDELITY INSURANCE An agreement whereb y, for a designated sum of money, one party agrees to guarantee the loyalty and honesty of an agent, officer, or employee of an GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 430 FIAT employer by promising to compensate the employer for losses incurred as a result of the disloyalty or dishonesty of such individuals. FIDUCIARY An individual in whom another has placed the utmost trust and confidence to manage and protect property or money. The relationship wherein one person has an obligation to act for another’sbenefit. A fiduciary relationship encompasses the idea of faith and confidence and is generally established only when the confidence given by one person is actually accepted by the other person. Mere respect for another individual’s judgment or general trust in his or her character is ordinarily in sufficient for the creation of a fiduciary relationship. The duties of a fiduciary include loyalty and reasonable care of the assets within custody. All of the fiduciary’s actions are performed for the advantage of the beneficiary. Courts have neither defined the particular circumstances of fiduciary relationships nor set any limitations on circumstances from which such an alliance may arise. Certain relationships are, however, universally regarded as fiduciary. The term embraces legal relationships such as those between attorney and client, broker and principal, principal and agent, TRUSTEE and beneficiary, and executors or administrators and the heirs of a decedent’s estate. A fiduciary relationship extends to every possible case in which one side places confidence in the other and such confidence is accepted; this causes dependence by the one individual and influence by the other. Blood relation alone does not automatically bring about a fiduciary relationship. A fiduciary relationship does not necessarily arise between parents and children or brothers and sisters. The courts stringently examine transactions between people involved in fiduciary relationships toward one another. Particular scrutiny is placed upon any transaction by which a dominant individual obtains any advantage or profit at the expense of the party under h is or her influence. Such transaction, in which UNDUE INFLUENCE of the fiduciary can be established, is void. FIELD AUDIT A systematic investigation by the Internal Revenue Service of a taxpayer’s financial records and his or her tax return that is conducted at the taxpayer’s place of business or at the office of the individual who prepared the return. A field audit differs from a CORRESPONDENCE AUDIT and an OFFICE AUDIT in the location where it occurs. CROSS REFERENCE Income Tax. FIELD CODE OF NEW YORK The first code of civil procedure that established simplified rules for pleading an action before a court, which was proposed by David Dudley Field in 1848 for the state of New York and enacted by the state legislature. The Field Code served as the prototype for other states in codifying and revising the rules of civil practice in their respective courts. Prior to the code, no uniform rules existed for the commencement of an action. Each common- law form of action and each equity action had its own rigid procedural requirements to be satisfied and the language of such pleadings was highly formalized and verbose. A plaintiff’sallegation rarely was stated in simple, clear language. The Field Code was a radical departure from the procedures of the past. As a result of its merger of law and equity actions into one action, the co de provided a uniform set of rules of PLEADING to be used in each type of case. The pleadings were to be in simple, concise language that set forth only the facts of the dispute between the two parties. This clarification of procedur e was a significant factor in bringing about a more efficient system of justice. Within 25 years of the enactment of the Field Code, about one-half of the states enacted comparable codes. The Field Code was also influential in ENGLISH LAW, its principles drafted into the JUDICATURE ACTS of 1873 and 1875. The term CODE PLEADING is derived from the Field Code, although code pleading can refer to compliance with the requirements of either a legislative enactment or a rule of the co urt. v FIELD, DAVID DUDLEY David Dudley Field secured a place in the nineteenth century as a commanding legal reformer. The primary achievement of the New York lawyer was his codification of the common laws of the United States. In addition, Field was among the most successful commer- cial and constitutional lawyers in New York. The cases he took on often anticipated those of the modern, made-for-hire corporate lawyer. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FIELD, DAVID DUDLEY 431 Field also made contributions to the national political scene. In different capacities, both before and after the Civil War, he managed to represent the constitutional interests of both the Democratic and Republican Parties. As a North- ern opponent of slavery, still sympathetic t o the rights of Southerners, he pursued a fight for justiceforthecommonpersononlegaland moral grounds. At the same time, his somewhat radical belief in the need to streamline law incited considerable resistance. During and after his lifetime, lawyers and others remembered him as achampionfortheprogressof PROCEDURAL LAW throughout the United States. His lifelong goal of extending justice to the common person left a lasting impression on the U.S. legal system and, to some degree, on the rest of the world. Field was born February 13, 1805, in Haddam, Connecticut, into a remarkable, aristocratic family. Nearly all the Fields of that era achieved a degree of success. Field’s grandfather Captain Timothy Field, of Guilford, Connecticut, set the standard by fighting in the Revolutionary War. Field’s father, the Reverend Dr. David Dudley Field, was educated at Yale College, became a minister, and received his doctorate at the prestigious Williams College. Field’s three brothers also obtained influence; in particular, STEPHEN J. FIELD became a justice of the U.S. Supreme Court. Field followed his father’s lead by also studying at Williams. He left the school in 1825 and began the study of law in the office of Hermanus Bleecker of Albany, New York. In 1828 he was admitted to the bar as an attorney, and in 1830, he was appointed a counselor. He went on to practice law with his former teachers from Williams, Henry Sedgwick and Robert Sedgwick. The tasks Field took on as a lawyer indicated a daring side. JEREMY BENTHAM, an English economic and legal philosopher and contemporary of Field’s, characterized the legal system of the day when he quipped, Do you know how judges make the common law?—Just as a man makes laws for his dog. Before Field’s initiatives, the only way for persons to know the state of the law was to look through collections of court opinions. Field, Bentham, and others found this recourse unsatisfactory. With his goal “to bring justice within the reach of all men,” Field set out to put the rules of law into a single book, through which persons could determine their rights. His proposals for procedural codes rested on four basic principles: One, pleadings are meant to state facts truthfully and to then prove those David Dudley Field. LIBRARY OF CONGRESS ▼▼ ▼▼ David Dudley Field 1805–1894 18001800 18501850 18751875 19001900 18251825 ❖ ❖ ◆◆◆◆ ◆◆◆◆ 1805 Born, Haddam, Conn. 1828 Admitted to New York bar 1839 Drafted collections of political, civil, and criminal codes and codes of procedure for adoption into state constitutions 1847 Introduced "Cornerstone" resolution—opposing slavery in free territories—at Democratic National Convention 1848 New York State enacted Field's code of procedure 1861 Represented New York at Peace Conference in Washington 1861–65 U.S. Civil War 1866 Successfully argued Ex parte Milligan before Supreme Court 1872 First drafted code of international law 1873–78 served as counsel for "Boss" Tweed 1881 New York State enacted Field's penal code 1894 Died, New York City GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 432 FIELD, DAVID DUDLEY facts by trial. Two, equitable defenses and counterclaims are available in all trial proceedings. Three, the court holds the power (formerly held by the chancellor) to compel parties to testify and to produce evidence. Four, evidence at the trial that varies from the PLEADING is a ground for the dismissal of the action. The development of these principles introduced a new set of procedural standards that he hoped the legal system would follow. In 1839, Field drafted a collection of codes intended for adoption into state constitutions. The codes comprised 371 sections, filling fewer than 70 pages. The groupings of legal principles under a code of procedure, a political code, a civil code, a code of CRIMINAL PROCEDURE, and a penal code treated law in the essential terms of CIVIL RIGHTS and due remedies. Ironically, Field’s codes faced their strongest resistance in New York. Lawyers throughout the East feared that the codes would interfere with the progress of law as they knew it. Neverthe- less, New York enacted Field’ s code of procedure in 1848. In 1881, the state also passed his penal code. The rest of Field’s codes, although passed by both houses of the New York Legislature, were never signed into law. The codes did better elsewhere, particularly in the West. There and throughout the United States, 24 states enacted them. California enacted the civil code in 1872, aided by the lobbying efforts of Field’s brother Stephen, then a practicing lawyer in the state. Meanwhile, Field did even more to establish his reputation as a controversial figure. He had been a Democrat through much of his early life. Starting in the 1840s, however, he broke sharply with party lines over the annexation of Texas. Democrats sought to expand slavery by permit- ting it in that state. Field objected and instead supported antislavery Republicans. In fact, some politicians credited Field with contributing a key influence in the nomination of ABRAHAM LINCOLN as the Republican presidential candidate in 1860. However, labels could not stick to Field. Even as an opponent of slavery, he defended the rights of Southerners after the Civil War by challenging certain Republican Reconstruction laws. In EX PARTE Milligan, 71 U.S. (4 Wall.) 2, 18 L. Ed. 281 (1866), Field argued successfully that a Reconstruction military commission could not constitutionally convict a Southern civilian, Lamdin B. Milligan, of previous actions as a Confederate. And in Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L. Ed. 356 (1867), he successfully argued against a Missouri Constitu- tion provision that would have prevented former Confederates from holding office. In addition to legal reform, Field established himself as a representative of other unpopular causes. He continued in this role while representing James Fisk and Jay Gould. His clients faced accusations of manipulating the Erie Railroad system for illegal profit. The case drew considerable attention in the late 1860s from Field’s critics around the nation. Fisk and Gould had already become notorious from charges of corruption thrown at them. Field’s record of serving in heated cases added to his detractors’ ire. In successfully defending the two, he faced criticisms of implementing his own legal codes for personal gain. Newspapers charged him with unethi cal abuse of the legal system. A group of lawyers even threatened Field with punitive action. However, only the forma- tion of the Association of the Bar of the City of New York ensued. The association, the first of its kind, sought to raise the professional standards of lawyers because the founding members believed Field had demeaned the profession. In 1873, Field began representation of William M. “Boss” Tweed, one of New York City’s notorious city bosses. Tweed served as a member of Congress, a New York State Senator, an alderman, and in several other roles. He also became the “boss” of the DEMOCRATIC PARTY of the city and state of New York, developing a political machine known as TAMMANY HALL. The organization controlled most of the New York government by the late 1860s, yielding an estimated $200 million of criminal funds through a variety of corrupt practices. Field represented Tweed when the latter was brought to trial for corruption. After the first trial resulted in a HUNG JURY, Tweed was convicted after a second trial and sentenced to 12 years in prison, though he died in 1878. Field’s influence extended beyond the Unit- ed States. Traveling extensively throughout his life, Field also created a code of INTERNATIONAL LAW , first drafted in 1872. Great Britain received the code with the most welcome. The country adopted substantial aspects of Field’s American Code of Proced ure. Other sets of codes went on to influence countries throughout Europe and the rest of the world. In fact, Field was surprised NEVER IS IT SAFE TO ENTRUST ANY MAN OR SET OF MEN WITH THE ABSOLUTE GOVERNMENT OF OTHER MEN . —DAVID DUDLEY FIELD GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FIELD, DAVID DUDLEY 433 to discover, during a trip to Asia in 1874, that the Indian legal system had implemented his procedural doctrine. Field served briefly as a member of Congress in 1877, filling out the unexpired term of Smith Ely, who had been elected as mayor of New York City. Field continued to give speeches and draft papers through the 1880s. He died in New York City, at the age of 89, on April 3, 1894. FURTHER READINGS David Dudley Field and His Family of Haddam, Connecticut, and Stockbridge, Massachusetts: Manuscripts and Books in the Chapin Library, Williams College. Available online at http://www.williams.edu/resources/chapin/ collect/field.html; website home page: http://www .williams.edu (accessed July 24, 2009). Field, Henry M. 1898. The Life of David Dudley Field. Reprint. Littleton,CO: Rothman. Hicks, Frederick C. 1929. High Finance in the Sixties. Reprint. Port Washington, NY: Associated Faculty. Reppy, Allison, ed. 2000. David Dudley Field: Centenary Essays: Celebrating One Hundred Years of Legal Reform. Buffalo, NY: Hein. CROSS REFE RENCES Code Pleading; Field Code of New York; “ What Shall Be Done With the Practice of the Courts?” (Appendix, Primary Documents). v FIELD, STEPHEN JOHNSON Stephen Johnson Field served as associate justice of the U.S. Supreme Court from 1863 to 1897, making him the second longest serving justice in the history of the Court. Field was a conservative who consistently upheld the interests of business. He became the prime advo cate of the theory of “substantive due process,” which favored private property rights over attempts by state and federal government to regulate the economy. Conservatives on the Court used SUBSTANTIVE DUE PROCESS to strike down regulatory legislation until the 1930s. Field was born in Haddam, Connecticut, on November 4, 1816. His family moved to Stockbridge, Massachusetts, when he was a young child. At 13 he was sent to Turkey to live with his sister and her missionary husband. They later moved to Athens , Greece, where Field remained until entering Williams College in 1833. After graduating in 1837 he read the law with his older brother, DAVID DUDLEY FIELD, who had emerged as a prominent New York City attorney and legal reformer. In 1849 Field left New York City for the Gold Rush in northern California. He speculated in land, developed a thriving legal practice involving property and mineral rights, and organized the town of Marysville. He became Marysville’s mayor and judge. In 1850 he was elected to the state legislature. He was instrumental in organiz- ing standards of procedure for civil and CRIMINAL LAW and he also drafted mining laws. He ran for the state senate in 1851 but was defeated. Field was elected to the California Supreme Court in 1857. He became chief justice in 1859 and served until 1863. He concentrated his efforts on cases dealing with titles to land and mineral rights. In 1863 President ABRAHAM LINCOLN , a Republican, appointed Field to the U.S. Supreme Court. Though Field was a Democrat, he was a loyal Unionist during the Civil War and a well-respected state judge. Field established his opposition to government interference with business in the SLAUGHTER- HOUSE CASES, 83 U.S. (16 Wall) 36, 21 L. Ed. 394 (1873). The case involved a Louisiana state law that allowed one meat company the exclusive right to slaughter livestock in New Orleans. Other packing companies were required to pay a fee for ▼▼ ▼▼ Stephen Johnson Field 1816–1899 18001800 18501850 18751875 19001900 18251825 ❖ 1816 Born, Haddam, Conn. ❖ ◆ 1841 Admitted to New York bar ◆ ◆ 1849 Moved to California and established practice in Marysville 1850 California admitted as thirty-first state in the Union 1850–51 Served in California legislature 1861–65 U.S. Civil War 1859 Became chief justice of the California Supreme Court 1857–63 Served on California Supreme Court ◆ 1873 Wrote dissenting opinion in Slaughter-House Cases 1899 Died, Washington, D.C. ◆ ◆ 1893 Personal Reminiscences of Early Days in California published 1863–97 Held associate justice position on the U.S. Supreme Court THE PRESENT ASSAULT UPON CAPITAL IS BUT THE BEGINNING .IT WILL BE BUT THE STEPPING -STONE TO OTHERS , LARGER AND MORE SWEEPING , ‘TIL OUR POLITICAL CONTESTS WILL BECOME A WAR OF THE POOR AGAINST THE RICH ; A WAR CONSTANTLY GROWING IN INTENSITY AND BITTERNESS . —STEPHEN FIELD GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 434 FIELD, STEPHEN JOHNSON using the slaughterhouses. These companies filed suit, claiming that the law violated the PRIVILEGES AND IMMUNITIES Clause of the FOUR- TEENTH AMENDMENT . TheCourtupheldtheLouisianamonopolylaw, ruling that the P rivileges a nd Immunities Clause had limited effect as it only reached privileges and immunities guaranteed by U.S. citizenship, not state citizenship. Field wrote a dissent, maintaining that “the privileges and immunities designated are those which of right belong to t he citizens of all free governments.” He saw the clause as a powerful tool to keep state government out of the affairs of business and the economy. Field saw an opportunity to use the Four- teenth Amendment’s Due Process Clause t o curtail government interference with business. He first articulated the idea of substantive due process in his dissent in Munn v. Illinois, 94 U.S. 113, 24 L. Ed. 77 (1876). The majority upheld the Illinois legislature’srighttofixmaximum storage rates charged by grain elevators and public warehouses and to require licenses to operate these facilities. Field contended that the regulations violated due process and that under the U.S. system of government the legislature lacked the power “to fix the price which anyone shall receive for his property of any kind.” By 1890 he had convinced the majority of the Court that his view of the Due Process Clause was correct and had extended its reach to the Fifth Amendment’sDueProcess Clause, using it toinvalidate federal legislation that regulated business. Until the 1930s the Court overturned a succession of state and federal laws that attempted to regulate business and labor. Field voted to strike down a federal income tax in Pollock v. Farmers’ Loan and Trust Co., 157 U.S. 429, 15 S. Ct. 673, 39 L. Ed. 759 (1895), seeing the tax as a plot against capitalism. In his concurring opinion, Field warned, “The persistent assault upon capital is but the beginning. It will be a stepping stone to others larger and more sweeping till our political contests will become a war of the poor against the rich, a war constantly growing in intensity and bitterness. ” Field entertained political ambitions while on the Court. In 1880 he sought the DEMOCRATIC PARTY presidential nomination but did poorly at the nominating convention. He became increas- ingly infirm during the 1890s and did little work. He was determined, however, to break John Marshall’s record of thirty-three years on the Court. He achieved that record in 1896 (later to be surpassed by WILLIAM O. DOUGLAS) and retired in 1897. He died in Washington, D.C., on April 9, 1899. FURTHER READINGS Kens, Paul. 1997. Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age. Lawrence: Univ. Press of Kansas. Pomeroy, John Norton. 2003. Some Account of the Work of Stephen J. Field as a Legislator, State Judge, and Judge of the Supreme Court of the United States. Clark, NJ: Lawbook Exchange. FIERI FACIAS [Latin, Cause (it) to be done.] The name of a writ of execution that directs a sheriff to seize and sell the goods and chattels of a judgment debtor in order to satisfy the judgment against the debtor. In its original form, the writ directed the SEIZURE and sale of goods and chattels only, but eventually was enlarged to permit levy on real property, too; largely synonymous with a modern writ of execution. FIFO An abbreviation for first-in, first-out, a method employed in accounting for the identification and valuation of the inventory of a business. FIFO assumes that the first goods purchased are the first sold. As a consequence, the items Stephen J. Field. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FIFO 435 that remain in the inventory at the end of the year are assumed to be those purchased last. CROSS REFE RENCE LIFO. FIFTEENTH AMENDMENT The Fifteenth Amendment to the U.S. Consti- tution reads: Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation. The Fifteenth Amendment was ratified by the states in 1870 and also gave Congress the power to enforce such rights against governments that sought to undermine this guarantee through the enactment of appropriate legislation. Enforcement was, however, difficult as states employed grandfather clauses and other eligibility requirements to maintain racial dis- crimination in the electoral process. CROSS REFE RENCES Elections; Voting. FIFTH AMENDMENT The Fifth Amendment to the U.S. Constitution reads: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a GRAND JURY , except in cases arising in the land or naval forces, or in the MILITIA, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of LIFE OR LIMB ; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without DUE PROCESS OF LAW; nor shall private property be taken for public use, without JUST COMPENSATION . The BILL OF RIGHTS, which consists of the first ten amendments to the U.S. Constitution, enumerates certain basic personal liberties. Laws passed by elected officials that infringe on these liberties are invalidated by the judiciary as unconstitutional. The Fifth Amendment to the Constitution, ratified in 1791, represents five distinct liberties the that Framers attempted to safeguard from majoritarian impulses: (1) the right to be indicted by an impartial grand jury before being tried for a federal criminal offense, (2) the right to be free from multiple prosecutions or punishments for a single criminal offense, (3) the right to remain silent when prosecuted for a criminal offense, (4) the right to have personal liberties protected by due process of law, and (5) the right to receive just compensation when the government takes private property for public use. The Framers of the Fifth Amendment intended that its provisions would apply only to the actions of the federal government. However, after the FOURTEENTH AMENDMENT was ratified, most of the Fifth Amendment’s protections were made applicable to the states. Under the INCORPORATION DOCTRINE, most of the liberties set forth in the Bill of Rights were made applicable to state governments through the U.S. Supreme Court’s interpretation of the Due Process and EQUAL PROTECTION Clauses of the Fourteenth Amendment. As a result, all states must provide protection against DOUBLE JEOPARDY , SELF-INCRIMINATION, deprivation of due process, and government taking of private property without just compensation. The Grand Jury Clause of the Fifth Amendment has not been made applicable to state governments. Double Jeopardy Clause The double jeopardy clause of the Fifth Amendment prohibits state and federal governments from prosecuting a defendant again for the same offense when the defendant has already been acquitted or convicted. The clause also prevents state and federal governments First-in, first-out (FIFO) is a method of inventory control that means the inventory bought first is sold first. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 436 FIFTEENTH AMENDMENT from imposing more than one punishment for the same offense. For more than a century, courts have wrestled with the question of what constitutes an ACQUITTAL such that a person has already been placed in jeopardy for a particular offense. However, all courts agree that the double jeopardy clause applies only to LEGAL PROCEED- INGS brought by state and federal governments in criminal court. It does not apply to legal proceedings instituted by purely private individuals in civil court. The U.S. legal system has two primary divisions, criminal and civil. Criminal actions are designed to punish individuals for wrongdo- ing against the public order. Civil actions are designed to compensate victims with money damages for injuries suffered at the hands of another. An individual who has been acquitted in criminal court of MURDER can, without violating the double jeo pardy clause, be required in civil court to pay money damages to the family of a victim. Thus, the successive criminal and civil trials of O. J. SIMPSON, regarding the deaths of Nicole Brown Simpson and Ronald Goldman, did not constitute double jeopardy. The Fifth Amendment’s prohibition against double jeopardy is rooted in Anglo-Saxon jurisprudence. Yet in England, the Crown sometimes ignored the right against double jeopardy. In certain important cases where an acquittal undermined royal interests, the defendant was tried again in a different manner or by a different court. The protection against double jeopardy was also extremely narrow under ENGLISH LAW. It applied only to capital crimes, in which the defendant would be subject to the death penalty if convicted. It did not apply to lesser offenses such as noncapital felonies and misdemeanors. Massachusetts was the first colony that recognized a right against double jeopardy. Its colonial charter provided, “No man shall be twise [sic] sentenced by Civil Justice for one and the same Crime, offence, or Trespasse” (as quoted in United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 [1989]). This charter, which served as a model for several other colonies, expanded the protection against double jeopardy to all crimes and offenses, not just capital felonies. Nonetheless, when the Bill of Rights was ratified in 1791, the constitutions of only two states expressly afforded double jeopardy protection. Thus, when JAMES MADISON submitted his proposal for the Fifth Amend- ment to Congress, he wanted to be sure that the right against double jeopardy would not be abused by the government, as it had been in England, or altogether forgotten, as it had been in the constitutions of eleven states. Although Congress and the state ratifying conventions said very little about the Fifth Amendment’s double jeopardy clause, the U.S. Supreme Court has identified several concerns that the Framers were trying to address when they drafted it: (1) preventing the government from employing its superior resources to wear down and erroneously convict innocent persons; (2) protecting individuals from the financial, emotional, and social consequence s of successive prosecutions; (3) preserving the finality and integrity of criminal proceedings, which would be compromised were the state allowed to arbitrarily ignore unsatisfactory out- comes; (4) restricting prosecutorial discretion over the charging process; and (5) eliminating judicial discretion to impose cumulative punishments not authoriz ed by the legislature. Self-Incrimination Clause The Fifth Amendment’s right against self- incrimination permits an individual to refuse to disclose information that could be used against him or her in a criminal prosecution. The purpose of this right is to inhibit t he government from compelling a confession through force, coercion, or deception. The self-incrimination clause applies to any state or federal legal proceeding, whether it is civil, criminal, administrative, or judicial in nature. This privilege is frequently invoked during the trial phase of legal proceedings, where individuals are placed under oath and asked questions on the WITNESS STAND. The privilege is also asserted with some frequency during the pretrial phase of legal proceedings. In the pretrial phase of criminal cases, it is usually asserted in response to pointed questions asked by law enforcement agents, prosecutors, and other government officials who are seeking to determ ine the persons responsible for a particular crime. During the pretrial phase of civil cases, parties may assert the right against self-incrimination when potentially damaging questions are posed in depositions and interrogatories. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FIFTH AMENDMENT 437 The right against self-incrimination largely took hold in English law with the seventeenth- century trial of John Lilburne, a Puritan agitator who opposed British attempts to impose Anglican religious uniformity across England. In 1637 Lilburne was prosecuted for attempting to smuggle several thousand Puritan pamphlets into England. Before the STAR CHAMBER (an English court with jurisdiction to extinguish nonconformity in the realm), Lilburne refused to take an oath requiring him to answer truthfully any question asked of him. He said that he could see that the court was trying to ensnare him, and he claimed that the law of God and the LAW OF THE LAND supported his right against self-accusation. Lilburne was whipped and pilloried for refusing to take the oath. Parliament later declared his punishment illegal, abolished the Star Chamber, and ultimately recognized the right against self-incrimination. The American colonists, particularly the Puritans in Massachusetts, were familiar with the plight of Lilburne. Nonetheless, the Massa- chusetts Body of Liberties, a collection of rules of conduct for the Puritan colonists taken nearly verbatim from the Bible, permitted the use of torture to extract confessions from defendants who were accused of capital crimes. Many other colonies subjected political and religiou s dis- senters to inquisitorial judicial proceedings not unlike those employed in England. In many of these proceedings, the accused persons were not entitled to remain silent but were often asked to provide evidence of their innocence. Even after the Revolution, the constitutions of four states offered no protections against self-incrimination. As Madison drafted the original version of the Fifth Amendment, the lessons of English and colonial history were firm ly in his mind. The U.S. Supreme Court has interpreted the self-incrimination clause more broadly than many of the Framers probably would have. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), illustrates this point. In Miranda the Court held that any statements made by defendants while in police custody before trial will be inadmissible during prosecution unless the police first warn the defendants that they have (1) the right to remain silent, (2) the right to consult an attorney before being questioned by the poli ce, (3) the right to have an attorney present during police question- ing, (4) the right to a court-appointed attorney if they cannot afford one, and (5) the right to be informed that any statements they do make can and will be used in their prosecution. Although the Miranda warnings are not provided in the Fifth Amendment’s self-incrimination clause, the Court has ruled that they constitute an essential part of a judicially created buffer zone that is necessary to protect rights that are specifically set forth in the Constitution. In Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed.2d 405 (2000), the U.S. Supreme Court concluded that the Miranda decision was based on Fifth Amendment principles; therefore, it could not be overturned legislatively. Congressional anger at the Miranda decision had led to the passage in 1968 of a law, 18 U.S.C.A. § 3501, that had restored voluntariness as the test for admitting confessions in federal court. However, the U.S. DEPARTMENT OF JUSTICE, under attorneys general of both major political parties, has refused to enforce the provision, believing the law to be unconstitutional. The law lay dormant until the Fourth CIRCUIT COURT of Appeals ruled in 1999 that Congress had the constitutional authority to pass the law. Chief Justice WILLIAM REHNQUIST, a frequent critic of the Miranda decision, joined the majority in rejecting the Fourth Circuit interpretation. Although members of the Court might not agree with the reasoning and the rule of Miranda, Rehnquist acknowledged the essential plac e that Miranda has in U.S. law and society. He pointed out the importance that the judicial system places on stare decisis, a concept that counsels courts to honor judicial precedents to ensure stability and predictability in decision-making. A court should only overrule its case precedents if there is, in Rehnquist’s words, “special justification.” The Court in Dickerson concluded there were no special justifications. The Court’s ruling in Dickerson generated a significant amount of interest in the legal community. Criminal defense attorneys and other Miranda supporters began citing Dick- erson for the proposition that the Miranda rule is not only alive and well, but has been elevated to the status of a constitutional rule and not just a “prophylactic” rule. If Mir anda were a constitutional rule, then a violation of Miranda would be a constitutional violation giving rise to a possible 1983 action. It would also t rigger the “fruits of the poisonous tree” doctrine and result in the suppression of any evidence GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 438 FIFTH AMENDMENT . for a designated sum of money, one party agrees to guarantee the loyalty and honesty of an agent, officer, or employee of an GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 43 0 FIAT employer by. systematic, voluntary sale of inheritable land. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FEUDALISM 42 9 The remains of feudalism can be found in contemporary law regarding land. For example,. York. The cases he took on often anticipated those of the modern, made-for-hire corporate lawyer. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FIELD, DAVID DUDLEY 43 1 Field also made contributions

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