English Legal and Constitutional History
Judicial Developments From 1066
• No politically cohesive concept of England.
• Decentralised/localized system, based on customary law. Divided into shires/counties with their own organization of taxes, military etc.
• Judicial/Exec/Legis powers all controlled at one lower level.
• Development of Separation of consequences. Community stopped taking law into their own hands but rather placed before
• Administrative changes built on existing system of local shires.
• Development and application of Feudal system:
KING
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Nobles Barons Earls
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Local Landowners
• Established duties from the King all the way down to the Landowners e.g. taxes, military service. King as supreme holder of justice however used his barons etc to uphold the system.
• Notion of King’s peace. Certain offences, including those against landlords, would not be heard by nobles but rather by the King.
• This allowed for the development of civil institutions. By developing the already existing structure of the feudal system it allowed for the cohesion and fortification of the notion of a nation.
• King/Queen began to travel across land enquiring breaches of the peace etc. and when the King/Queen came to enforce the law it would do so under the local customary law.
• King would treat like cases alike (foundation of precedent) this provided certainty, arbitrariness as the same consequences would apply across the land.
• Henry II created the official “eyre”, person who would listen to the common pleas. This made King’s justice more accessible, began process of centralized justice.
• Delegation of some of the functions of the King. Obtains greater admin. Control. Also make sure King received all that was owed by landowners etc.
• Established central royal court at Westminster, which allowed greater access to the law. Members of the King’s court began to specialize leading to the creation of 3 courts: 1) Common Pleas (concerned with ordinary cases) 2) Exchequer (concerned with royal revenue e.g. taxes) 3) King’s Bench (concerned with matters of breaches to the peace).
• Development of the system of writ, a letter that specified action of a complaint addressed to the King’s representative to get the person it is addressed to appear at the King’s court.
Deficiencies in Common Law
When common law judges looked into allegations of injustice, they were confined by the accumulated body of judicial precedent – focused on form.
• Problems of evidence. No level of local knowledge, difficult to prove anything.
• Took many years to develop professional advocators
• Catholic church, which had great influence, forbid trial by battle and established trial by jury consisting of 12 or more men of the county.
• Critical point falls on the writ. Emphasis on the use of the correct form as each writ had a specific purpose. If the wrong writ was used then this was a basis for the defence to have the case thrown out of court.
• Legal fiction existed that fabricated facts used to allow people to gain writs.
Development of Equity and Court of Chancery
• Chancellor, position not bound by the law, looked at conscience and justice/fairness which established the notion of EQUITY.
• Judgements handed down were placed on the litigant’s conscience.
• Equity doesn’t overrule common law.
• Remedies of Specific performance developed in equity.
• Discretionary power of the Chancellor was that he could enquire into the merit of case and those receiving justice.
• Disputes between equity and the common law were those based on justice of the conscience vs. legal rights.
Equitable Maxims
• He who seeks equity must do equity.
• He who comes to equity must come with clean hands.
• Equity follows the law.
• Where equity is equal the law will prevail.
• Equity is equality.
• Equity looks to the intent rather than to form.
19th Century Reforms in England
• Informative Writ Act introduced the common form of writ. Removed the need for numerous types of writs.
• Simplification of court procedures in common law and equity, e.g. Equity court spoken in English making it more accessible.
• Judicature Acts (1873 & 1875), Replaced writ with statement of claim. Focus on substance of action and brief statement of evidence. Allowed for the merging of common law courts and Court of Chancery into Supreme Court of Judicature (SCJ).
• SCJ was the High Court which consisted of 5 divisions: 1) Queens Bench 2) Common Pleas 3) Exchequer 4) Chancery 5) Probate/Divorce/Admirality. From this a Court of Appeal was established for decisions made in the respective courts. All courts had common form of procedure. Provided for the concurrent distribution of common law and equity. Eliminated the need for one matter to be heard in more than one court.
Origins and Development of UK Parliament
• Foundations of English constitutionalism originate in documents such as the Magna Carta.
• Magna Carta (1215), only with the consent of general council of realm can the King demand extraordinary fiscal duties on his citizens. Lays groundwork for the development of professional lawyers appointed by the King. Recognises King as subject to the law and lays down theoretical foundation of parliament, however King was only advised by the parliament.
• Reformation of Parliament aided Henry VIII to break ties with the Catholic Church and establish the Church of England.
• Parliament and the King acting together held the power to pass anything, this notion is known as plenary power.