1. Comparative Law Spring 2002 Professor Susanna Fischer CLASS 36 ENGLISH LEGAL HISTORY SOURCES OF ENGLISH LAW April 15, 2002

2. A Flying Tour of English Legal History Many legal institutions in England as well as in the U.S. are, as Penny Darbyshire states, “only explicable in terms of history” E.g. Inns of Court, Queen’s Bench and Chancery Divisions of English High Court, jury, distinction between law and equity, Justice of the Peace (magistrate) in English system

3. English Law and Roman Law Why was the Roman law influence comparatively less strong in England than in France or Germany?

4. English Law and Roman Law Why was the Roman law influence comparatively less strong in England than in France or Germany? England already had a unified common law system prior to the Norman Conquest in 1066 and the English thus did not see the need to look to Roman law for assistance

5. Anglo-Saxon law (prior to 1066) Earliest period of recorded English law Tribal law applicable to particular tribal area such as Mercia or Kent Customary law Considerable differences in law from one tribal area to another Trend was toward unification, when the Anglo-Saxons were conquered by William the Conqueror in the Norman Conquest of 1066

6. Norman Conquest (1066) William the Conqueror of Normandy came to power in 1066 Imposed strong national government Monarch owned all land and granted it to his followers on certain conditions – similar grants continued down the chain of monarch’s followers’ followers. Each feudal lord held his own feudal court (which subsisted until land reforms of 1925)

7. Development of Royal Courts In the 12 th /13 th centuries, the English kings developed 3 royal courts that sat at Westminster: Court of Exchequer – Barons mostly heard cases affecting royal revenue, some limited civil jurisdiction Court of King’s Bench – Chief Justices/Judges heard cases in which King had an interest Court of Common Pleas – Chief Justices/Judges adjucated civil cases between individuals

8. Common Law: Highly Technical Actions begun by issue of a royal writ Claim had to be set out in accepted way Claimant had to find an appropriate form of action, or the law would not provide a remedy

9. Addition of the Court of Chancery Some litigants were dissatisfied with the system of royal justice dispensed by the 3 royal courts. They petitioned the monarch to do justice. He passed their petitions onto the Lord Chancellor, who set up his own Court of Chancery to deal with the petitions. By the 15 th c, the Lord Chancellor’s legal decisions became known as “equity”, separate from the “law” of the other 3 royal courts. Equity/Law distinction survives in the U.S. e.g. Delaware

10. Equity: New Rights and Remedies The Lord Chancellor’s system tried to remedy problems caused by overly rigid and technical royal legal system. Equity took a more flexible approach to doing justice. New rights and remedies were created. What are some examples?

11. Examples of Equity Law of trusts, mortgages, remedies of injunction and specific performance, declaratory judgments, right of rectification, right of rescission, appointment of receivers Also new proceduures – subpoenas to order attendance of witnesses, oral examination of witnesses, discovery, hearing cases in English as opposed to Latin

12. What are Some Famous Maxims of Equity? Remember that equity is based on fairness and natural justice Also remember that equitable remedies are discretionary

13. What are Some Famous Maxims of Equity? He who comes to equity must come with clean hands Equity will not suffer a wrong to be without a remedy Delay defeats equity (e.g. laches) Equity looks to the intent rather than the form

14. 18 th and 19 th Century Problems with Court of Chancery Overburdened with work This led to horrendous delays – see Charles Dickens’ Bleak House

15. Separate Courts Survived Until the Late 19 th Century Despite conflicts over jurisdiction (resolved in the case of law/equity in Equity’s favor in 1615), all these separate royal courts survived for centuries until in the 1870s, they were merged into the present High Court of Justice by the Judicature Acts (1873-1875). Many of their names survive to this day in the English legal system Why was this legislation passed? Were these really merged?

16. Not a Total Merger Although the Court of Queen’s Bench (which is the merged court for the 3 royal courts of King’s Bench, Common Please, and Exchequer) and the Court of Chancery are administratively combined into 2 divisions in th High Court, the Queen’s Bench and Chancery remain separate jurisdictions with separate judges and a distinction in work, and somewhat different procedure. All courts now administer both common law and equity.

17. The High Court of Justice Queen’s Bench Division Chancery Division Probate, Divorce, and Admiralty Division (separate divisions because under the old system wills and divorce were ecclesiastical and there was a separate admiralty court) – in 1970, this was redistributed (e.g. Admiralty to Queen’s Bench Division) and a Family Division was established.

18. Appellate Courts 1873-75: Creation of Civil Court of Appeal. Intention was to get rid of the judicial division of House of Lords, but House of Lords as final court of appeal in civil cases was retained by statute in 1876 1907: Creation of Court of Criminal Appeal – which became Court of Appeal (Criminal Division) in 1966. Further appeal to House of Lords 1971: Establishment of Crown Court to hear criminal cases

19. Sources of English Law EC law Acts of Parliament (parliamentary supremacy – can courts judicially review Acts of Parliament?) Delegated legislation (orders in council, statutory instruments, byelaws– can courts judicially review this?) Case law Custom (very limited application) Books of authority – different treatment between certain ancient textbooks that are sources of law and modern ones that aren’t

20. Precedent What is stare decisis? There are rules of precedent applicable to different courts – e.g. House of Lords binds all other lower courts but does not bind itself. Court of Appeal binds all lower courts but not the House of Lords and normally binds itself for future. High Court is not binding on self but on lower courts. County Court, Magistrates Courts, and Crown court are not binding.

21. Judgments What is the ratio decidendi? What do Americans call this, if anything? What is meant by obiter dicta?