1. English Legal and Constitutional History
Topic 8 Glenn Dennett

10. Henry 11
Established:
General Eyre – administrative and judicial functions
Courts of Assize – travelling courts
“The Bench” – central Royal court at Westminster

11. Westminster Courts
Court of Common Pleas: matters between ordinary litigants
Court of Exchequer: specialised in disputes concerning the royal revenue
Court of King’s Bench: specialised in matters concerning the King or touching on the royal interests

14. Magna Carta Court of Common Pleas would remain at Westminster
No one could be put on trial unless supported by credible witnesses
King to appoint as judges and sheriffs only those who had a knowledge of the law

15. Magna Carta
No freeman would be imprisoned or dispossessed of his property except by “lawful judgement of their peers or by the law of the land”
Justice should not be sold, refused or delayed
Freedom of movement

17. Reformation Parliament 1529-1536
The Act in Restraint of Appeals to Rome
The Act of Supremacy
Plenary power of Parliament

19. Divine Right of Kings
“Kings are not only God’s lieutenants on earth and sit upon God’s throne but even by God himself they are called gods…for that they exercise a manner of resemblance of divine power upon earth.”
James 1

21. Dr Bonham’s Case (1610) 8 Co Rep 107a at 118a:
“It appears in our books that in many cases the common law will control acts of Parliament and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such an act to be void.”

23. Charles 1 Short Parliament Long Parliament The Triennial Act 1641
Act to Continue the Existing Parliament 1641

25. • Offer of the Crown to William and Mary, by James Northcote, 1827 • © Palace of Westminster Collection

26. Bill of Rights 1689 Redesigned English monarchy James 11 “resigned”
Monarch could not govern independently without parliamentary consent or approval
No royal power to dispense with or suspend laws
Annual Parliaments to control finances

27. Bill of Rights Taxation required parliamentary consent
No standing army without parliamentary consent
Established parliamentary privilege
Regular parliaments
Bail not to be excessive, excessive fines not to be imposed, cruel and unusual punishments not to be inflicted.

28. Act of Settlement 1701
Prevents monarchs or their heirs from marrying Catholics
Safeguarded judicial independence. Judges given security of income and tenure, and could only be removed by Parliament, if an accusation of bad behaviour was proved.

29. Re Hallett’s Estate; Knatchbull v Hallett (1880) 13ChD 696 at 710:
“…it must not be forgotten that the rules of the Courts of Equity are not, like the rules of Common Law, supposed to have been established from time immemorial. It is perfectly well known that they have been established from time to time – altered, improved, and refined from time to time…No doubt they were invented for the purpose of securing the better administration of justice, but they were still invented.”

30. Equitable maxims He who seeks equity must do equity
He who comes to equity must come with clean hands
Equity will not suffer a wrong to be without a remedy
Equity follows the law
He who is first in time takes precedence
Where the equities are equal, the law prevails
Equity assists the diligent, not the tardy
Equity is equality
Equity looks to the intent rather than to form
Equity looks on that as done which ought to be done
Equity imputes an intention to fulfil an obligation
Equity acts in personam

31. 19th Century reforms 1832: Uniformity of Process Act
Common form of writ for all legal processes
1852: Common Law Procedure Act
Chancery Procedure Act
Simplified procedures
1873/1875: Judicature Acts

32. Judicature Acts Replaced the writ system with the statement of claim
Merged three common law courts with Court of Chancery
New Supreme Court of Judicature
High Court
Court of Appeal

33. Divisions of High Court
Queen’s Bench Division
Common Pleas Division
Exchequer Division
Chancery Division
Probate, Divorce and Admiralty Division

34. Developments in NSW
Supreme Court Act, 1970 (NSW)