3 distinct legal systems

Dane law,

Mercian Law

Wessex law.

3 main Anglo-Saxon courts before 1066 –

the Shire Court

the Hundred Court

the Franchise Courts.

The Norman conquest(1066)

William the Conqueror introduced;

The Feudal system of land tenure;

The Curia Regis (see later notes)

Strong national government

The Feudal system

Land owned as tenants or subtenants of the King.

The Curia Regis (‘Kings council’).

Henry II (1154-89)

Introduced several major reforms.

Introduced the first personal property tax.

Forced Wales to at least nominally acknowledge sovereignty of English crown.

Established separate secular courts during 1160’s.

Church & State?

Church reserved the right to try felonious clerics in the ecclesiastical courts (religious courts) not secular courts (those of the crown). Henry determined to eliminate this custom.

Thus a priest handed over to criminal law no longer a priest, undermining the whole basis of clerical immunity

Church reserved the right to try felonious clerics in the ecclesiastical courts (religious courts) not secular courts (those of the crown). Henry determined to eliminate this custom.

Thus a priest handed over to criminal law no longer a priest, undermining the whole basis of clerical immunity

Council of Clarendon ,January 1164.

Constitutions of Clarendon - list of 16 clauses defining relationship between secular & religious (canon) law.

Assize of Clarendon (1166) beginnings of trial by jury (replacing trial by ordeal).

The Assize of Clarendon was an act of King Henry II of England of 1166, whereby trial by jury became the norm in England, replacing unfair alternatives such as trial by combat.

Henry II inherited the throne of a troubled kingdom. The Crusades were in full swing at the time, a military endeavour that kept noble landowners away from their castles for years at a time. Unoccupied and unclaimed land invited squatters; since there was no central recording office for real property in England at the time, and sorting out who owned what fief was entrusted to human memory, disputes arose when aristocrats returned, or died thousands of miles from home.

Another, even more serious problem requiring royal action was the aftermath of the disastrous civil war between King Stephen and the Empress Maud. The two competing factions had hired mercenary soldiers, and when there was no one left to pay them, many of them took up robbery and other forms of violence as a profession. Crime followed the breakdown of local authority. The quarrel between the King and the Empress created more property troubles; as communities were divided, both factions were happy to reward their supporters with the lands of the local opponents. King Henry inherited a right royal mess.

Finally, there was the long-standing difficulty involving the Church, which culminated in the murder of St Thomas Becket. The problem for the King was that the Church acted like an imperium in imperio, a kingdom within a kingdom, only partially subject to Henry's laws if at all. The Church operated its own court system, which answered not to Henry but to the PopeThis article is about the Catholic pope. See Pope (disambiguation) for other meanings of the word pope. The Pope is the Catholic bishop and patriarch of Rome, and ex officio supreme spiritual leader of what might be called the Catholic Communion (that is,, and was a large landowner and powerful vested interest. Henry wished to establish a system of justice that would enlarge the power of the CrownThe Crown is a term which is used to separate the government authority and property of the state in a kingdom, as opposed to any personal influence and private assets held by the current Monarch. In the United Kingdom (and by extension, most of the nation at the expense of the clergy.

Henry therefore founded a number of assizes. One was the assize of novel disseisin, which in Law FrenchLaw French is an archaic language based on Norman and Anglo-Norman. It was used in the law courts of Great Britain, beginning with the Norman Conquest by William the Conqueror. Its use continued for several centuries in the courts of England. In its later meant something close to the "assize of recent dispossession." Those who had been recently put out of their lands could recover the beneficial use of them by resort to this assize, which led to a then innovative method of trial. Twelve "sword-girt" knightFor the chess piece, see knight (chess). In former times, a knight was a warrior or nobleman; today a knight is a person who has been given a royal recognition. In the United Kingdom the knight is styled Sir''. The female styling is usually Dame''. Rootss of the locality were summoned to determine, upon their own knowledge, who was entitled to the property. This innovative method of proceeding, the origin of the civil petit jury at common lawThis article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). The common-law legal system forms a major part of the law of many c, was aimed at the chaos introduced into property rights by crusade and civil war.

Henry's true measure of cleverness, though, is on display in his innovations in criminal justiceThe study of criminal justice traditionally revolves around three main components of the criminal justice system police courts corrections Nowadays, it is sometimes argued that psychiatry is also a central part of the criminal justice system. The pursuit. Henry appointed " justices in eyre," the counterpart of circuit judge s, to travel from town to town. When they arrived, they too called upon "sword-girt knights" to summon twenty four free men from the surrounding areas. These twenty-four free men were the first grand jury. They were called to report under oath any accusations of crime they were aware of in the community. In theory, then as now, the grand jury only brought accusations; it did not find guilt or innocence.

This new assize did away with the old form of trial known as "compurgation" in accusations brought by the grand jury. Under compurgation, an accused person who swore he didn't do the crime, and who found a sufficient number of his neighbours to swear that they believed him, was acquitted. Compurgation was no longer available in charges brought by the grand jury.

The trial available to the defendant remained the traditional trial by ordeal. Nevertheless, Henry did not put much faith in the results of the ordeal. The unfortunate felon who was convicted through the ordeal was, of course, executed. But even if the indicted culprit was acquitted in the ordeal, he was banished. In other words, the proceedings by the grand jury were the actual trial; everyone it accused was punished, and the community rid of the malefactor, one way or another.

These proceedings did much to transfer power out of the hands of local barons and into the hands of the royal court and its judges. In 1215, moreover, the Fourth Lateran Council forbade clergymen of the Roman Catholic Church from participating in trial by ordeal. After this date, trials after indictment by the grand jury were conducted by juries as well.

The large changes wrought in the English system of justice did not go unchallenged. The dispute over jurisdiction over the one-sixth of the population of England in holy orders was the chief grievance between the King and Becket. Disgruntled peers attempted to undo Henry's reforms by the Magna Carta forced on King John, but by that time the reforms had progressed too far --- and their superiority over the system they had replaced was too obvious --- for the forces of reaction to gain much ground. Henry II's reforms laid the groundwork for the system of trials in common law.

“Who will rid me of this meddlesome priest.?”

Murder of Thomas Becket 29th December 1170.

Secular common law courts of Henry II

Adversarial system - principle that a person could not be tried until formally accused continued to apply for most criminal cases. In 1215 this principle became enshrined as article 38 of the Magna Carta: "No bailiff for the future shall, upon his own unsupported complaint, put anyone to his law, without credible witnesses brought for this purposes

He divided the county up into CIRCUITS.

Uniform pattern of customary law

Stare decisis

Judicial precedent (see later notes).

The Common law courts

Henry II –magistrates given power to render legal decisions on a wide range of civil matters in the name of the Crown.

Henry II died on 6 July 1189 - succeeded by Richard I

EU law

Acts of Parliament

Delegated legislation (orders in council, statutory instruments, byelaws)

Case is only selected for reporting if raises point of legal significance.

Very small proportion of all cases heard and decided by the courts are eventually reported

More sources of Law

Books of authority

some examples;

William Blackstone - Commentaries on the Laws of England (1765). From the time of Blackstone onwards, writers of legal textbooks have fallen into the category of books of recent origin.

Hale, History of the Pleas of the Crown (1736).

Coke, Institutes of the Laws of England (1628).

Modern textbooks are not treated as works of authority although they are frequently referred to in the courts.

Custom (very limited application)

The Common law

Blackstone's seven tests[1]

William Blackstone (1723-1780).

Commentaries on the Laws of England (1765)

According to Blackstone the following are forms of customary law:

a) "general customs“ or today‘s common law

b) court (procedural) customs

c) "particular customs" practiced by & affecting the inhabitants of a defined geographical area.

Seven criteria for a customary right are as follows:

Immemorial

Continuous

Peaceable

Reasonable

Certain of practice, of locale, of persons

Lady Wilson v Sir Frances Willes, Knt. 7 East, 121 January 28th 1806.

Compulsory

Consistent

Mercer v Denne (1905)

Mills v The Mayor of Colchester – right to fish oyster

Equity

How could people obtain justice if they could not get justice in the common law courts?

‘redress grievances’.

‘Keeper of the King’s Conscience’ (the Lord Chancellor)

Court of Chancery

Several conditions to meet:

Had to show that could not receive justice in common law courts.

Had to show was without blame. (clean hands).

Had to show that had not delayed bringing case before the court.

Failures of the Court of Chancery? (Charles Dickens, Bleak House, Jarndyce v Jarndyce).

Equity

Why did equity develop?

The Court of Chancery

The "Earl of Oxford's case" (1615).

Judicature Acts 1873-75.

The Importance of Equity

Specific performance

Injunctions

Trusts

Main differences between law and equity…..

The sources – for law the sources are mainly cases and statute, whereas for equity the sources are the maxims of equity.

The remedies offered.

Juries not available to equity claims.