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Law, culture, and Catholicism...up in smoke!

Monday, March 06, 2006

A Legal Principle You May Find Interesting

Though generally the stuff of law review articles, I came upon an issue while researching. The ancient legal principle of stercus tauri. While modern legal scholars consider it a bit of an embarrassment, there is a tradition in the West that is both substantial and significant. It appears to be a broad principle that affects every area of law. Though it is mostly latent throughout our common law tradition, there seems to be an issue in every generation that recalls the legal community to not only acknowledge its existence, but also appeal to it directly. Recently an issue came up and we successfully appealed to it and used it in several legal issues concerning the Department of Defense and our military installation. Here is a brief historical sketch:

This principle originally developed in ancient Rome. Cicero expounded on this doctrine in his prosecution of Catiline, and in his defense of Roscius. It was codified in the Lex Iulia and later solemnized in the Codex Iustinianus. Ulpian commented on it and it made its way into the canonical forms used by the Roman Church. During the Middle Ages, Gratian compiled all of the canonical legislation then existing into his famous Decretum (11th century). (It is worth mentioning here, that stercus tauri--as well as countless other Roman legal forms--became part and parcel of this body of law which today is known as Canon Law.) The medieval scholastics commented on the Decretum and scholars at the University of Bologna in Italy became famous for commentaries ("glossae") on this principle for canonical and civil usage. This legal principle then found its way into the common law of England. The Magna Carta (13th century) was an actual application of this principle when King John tried to expand his prerogatives over and against the City of London and other landed interests. King John's action was the first attempt at absolutism, but he was forestalled by the land owners and subsidiary interests who drafted the Magna Carta as a solemnization of their ancient and customary rights. Henry of Bracton (d. 1268) in his De legibus et consuetudinibus Angliae expounded on this principle with great force. So much so, that it became an integral part of the common law. The common law of England significantly influenced the founding of the American Colonies. James Otis (d. 1783)(pictured left), scholar and lawyer, commented on this tradition and in response to the King's violations of customary law, stated:

A man's house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court may inquire...


The ancient legal principle of "stercus tauri" applies and if not here then nowhere; for how can the laws of the realm be endured when such writs are issued! To quote Tully, "how long will that audacity go unbridled?" Our only response, in the tradition of our fathers who met at Runnymede, must be "stercus tauri."

We see this principle play out in the laws of the states and federally as well. There are explict citations of stercus tauri in the Cranch series of case reports. (Usually these citations are in reference to issues of federalism.)

Very interesting indeed.