Henry began to make proclamations whilst presiding over the Kings Council (e.g. the Assize of Clarendon – 1166). “If judgments are to be made, they should be done by twelve free men from the Council as well as 4 free men from the town”. This later gave birth to the jury.
Henry II
Henry had three sons, Richard the Lionhart, John Lackland and Henry II. During Henry II’s time, the disputes between the ecclesiastical courts and the secular courts blew up. The archbishop of Canterbury, the top representative of the pope in England was Thomas A-Beckett. Through a series of disputes primarily over the authority of the church courts, Henry had many difficulties (who will rid me of this meddlesome priest), which resulted in 12 of Henry’s knights murdering Thomas in the Cathedral. Henry had to appear repentant (walk around in sackcloth etc).
One of the things that came out of this was the separation of clergymen from the authority of the secular courts. In those days, virtually the only people that could read were clergymen – if you could read a passage from the bible, the ecclesiastical courts could try you. The ecclesiastical courts were very soft in their punishment – therefore lots of people began to learn how to read to escape the authority of the secular courts.
Richard the Lionhearted
After Henry II’s death, Richard the Lionhearted was a very poor king who tended to go off and have wars in the holy land (which we are still paying for!), and his brother, John Lackland became the King after his death.
John Lackland
Prior to this time, England was a massive realm which included some of France. During John’s reign, France was lost. John also had quarrels with the Pope (Pope Innocent III) primarily over the appt. of the Archbishop of Canterbury again (John Langton). John Langton stirred up all the barons and formed what they called the charter of liberties which amongst other debates, said that the king could only levy certain taxes.
Eventually this gave birth to the Magna Carta which was a constitutional charter limiting the rights of the king (1215). There were 63 clauses most of which are irrelevant these days. However, some of the clauses began to limit the rights of the king (i.e. the law stands separate from the king, and also applied to the king – constitutionalism in its purest form. The law is sovereign – not the other was around.
Edward Longshanks
Another important figure from that time was Edward Longshanks (the Hammer of the Scots – see Braveheart). He instituted what became known as parliament, creating a system of parliamentary review and he used parliament to pass statutes. In the old days, the kings would pass laws based on custom etc. The king in parliament began to make statutes – proclamations about particular laws that were then binding on the nation. The king would still make his own laws that would bind by decree – referred to as ordinances.
One of the most important statutes was the Kia Imptores (Latin because it was one of the only written languages available. English was not yet written). This statute changed the nature of feudalism (being able to transfer land). After this statute was passed, you could simply sell land.
Longshanks also set up what would become the basic court structure in England. There were three courts set up out of the Curia Regis (later known as a privy council):
Court of the Exchequer: Dealt with revenue matters (e.g. tax).
Court of Common Pleas: Dealt with Civil actions (e.g. land ownership).
Court of the Kings Bench: Dealt with serious crimes (mainly because the Kings peace is broken when crimes occur).
System of Writs developed so that the people knew where to take their complaint. Individuals would have to write down their complaint. There was a split between Writs of Right (dealing with harm against the body) & the Writs of Real (mostly concerned with land-which is why we call land real property or real estate!).The system of writs was still competing with the manorial courts (laws passed down by the lords), as well as the ecclesiastical courts, but eventually emerge as the most popular because the outcomes were tangible and enforced by the officers of the courts. Records of judgments were kept and collected and read – aiding in the development of the principle of precedent. To appeal a judgment, you would have to review the records and try to find a mistake or an error of law – an important aspect which still remains today.
Judicial Texts
1180 – Glanvil. Was the first book of law mostly concerned with land. Popularly believed to be written by Ranulf Granvil who was one of the justiciars of England at the time. The language is Latin though in courts they would speak French because they are essentially Norman people (.e. a mixture of the written Latin and the spoken French).
Henry Bracton wrote an important thesis in 1256 that was concerned with land and other actions.
The Mirror of Justices (1285) responsible for many errors because it was written by an idiot – not a reliable text at all.
1289 – The Year Books. The records of law in French from1289-1535.
Etc etc.
Sunjamaine – wrote a important dialogue called a dialogue between the doctor and the student. This was a comparison between Roman civil laws and the common law. I.e. how the common law was different to the ecclesiastical cannon law.
Who Comprised the Legal Profession?
Curia Regis
Justiciarri (Judges)
Clerks – schooled as doctors of divinity coming from the civil jurisdictions helped the judges out, became apprentices of the judges & later chose judges from their ranks.
Advocatus – speaks for another person but make be corrected by that person
Attornatus (Attorney) – able to argue for another person.
Essoiners – to explain the judgement.
Pleadist – Specialized. People who are there to bring a plea and state the wrong that has been done.
People could not represent themselves because the proceedings were in French.
1275 – there was a need to regulate these people due to a lack of professionalism in some.
By 1300, attorneys would have to swear to the court and become court officers. The Soigners joined up with the attorneys and these two groups became one.
The Sergeants at Law (from the Court of Common Please) – identified by coi (some kind of white linen they would wear under their chin which is represented by the flat patch of a barristers wig today), became less and less popular and the last one died in 1921. Barristers took over from them.
Barristers – ranked by where they could sit in a building. Eventually Attorneys did the paperwork and the sergeants did the presentations in the court.
In other courts solicitors were evolving though some were attempting to outlaw them. Very low in the scheme of things. In 1729, the solicitors and attorneys dot together and created A Society of Gentleman’s Practices of Law – now known as The Law Society.
Another aspect that evolved was the recognition of the status of barristers in the court. The very top echelon of barristers became known as the Kings Counselors. The first of these was scientist Francis Bacon in 1603. As a special token, counselors were given silk gowns and barristers these days are still known as silks. When Queen Anne died, a proclamation was sent out to instruct barristers to wear black – and they still do today.
Legal Education
Eventually legal education moved to the university system. First Professor of English law was Blackstone. He was given a chair in 1763 at Oxford. Wrote a book “Commentaries on the Laws of England” which remained the text for 150 years.
Andrew Amos was also important (1828). His lecturing was the reason that you had to go to university to gain an education in common law.
The 1600’s – The Tudor State
Henry VIII
Henry was an aggressive person who was left with a bankrupt state and needed money. He was the King chosen from the War of the Roses, and there had been a weakening of the state. The modern state really begins with him – the notion that the state will be in control was Henry’s idea.
He attacked the legal profession and the way that they were creating particular property relationships & he imposed the old feudal taxes back on these relationships. Importantly, he also attacked Papal power culminating in him eventually setting up and heading his own church (the Church of England). He passed the act what was known as the Act of Supremacy that placed him as the ultimate arbitrator of religious and state matters. The pope had no role in England any more. As head of the church, he took all the monasteries away and sold them for massive profits.
At this time he also set up a number of courts. The first of these was the Court of Star Chamber. Henry, Mary as well as Elizabeth used this. It had both a criminal as well as civil jurisdiction and was there to fix up problems of fairness in crime (e.g. corruption in juries, riots, other corruption). Eventually it became a political tool. Judgment would be handed down in secret; there would be no appearance of the accused. Once the person had been found guilty of treason, they would be sought for assassination. It was eventually abolished at the end of the Stuart reign in 1681.
There were other courts that came straight from the king and were not part of the common law system (prerogative system). An example was the Court of Request – a court for poor people when they were not satisfied with common law. There was also a Court of High Commission that was there to deal with ecclesiastical Immoralities (e.g. priests being dodgy).
The common law system could not sort everything out (as deals only in damages). The writ system, which was developed in the feudal times, began to bog the common law system down (e.g. land ownership law was previously based on status rather than contractual relationship). Where common law could not sort these things out, people would seek the advice of the king via the Lord Chancellor (cross between a judge/politician/etc). The Lord Chancellor was primarily there to give advice about moral issues – a keeper of the king’s conscience. For a long time this role was held by a priest. Eventually the Chancellery becomes another kind of court based on the Maxims of Equity. You would go to equity if you wanted the goods rather than damages – it is providing for a different remedy. As time progressed, this became a second body of law that sits alongside common law.
Equity became it’s most powerful under Henry VIII and he ultimately did everything he could to destroy the Courts of Equity (bribing judges, assassinating people etc). It remained popular however because it recognized relationships that common-law did not and you could avoid taxes under it.
James the VI of Scotland
James VI was asked to become king after Queen Elizabeth died. At this time there were enormous religious problems. In both England and Scotland there was an uprising of the protestant church (James himself was a protestant but didn’t mind either way about Catholicism). James had grown up in Scotland where there wasn’t a parliament & he thought that ultimately, the king had the divine right to exercise the law. Conversely, the parliament thought that the king should only be able to do this through the workings of the parliament. James dissolved parliament and tried to run the country himself. He also changed the law at will. He came head to head with the legal profession – especially the Lord Chief Justice of Common-law – Lord Justice Coke (pronounced Cook). Cokes philosophy was that you could only know what the law was if you were schooled as a lawyer. James didn’t understand the artificial reason of the common law – not a wise thing to tell a king. Coke survived the criticism and went on to write Institutes of the Law of England.
At the time the Lord Chancellor was Francis Bacon was arguing on the relationship between common law and equity. Bacon believed that common law should prevail over equity. Bacon also believed in Positivism – i.e. that law should come from the sovereign. Coke had an alternative view to this and challenged the authority of the parliament to sit as a court. This was only the domain of the common law judge.
James the VI thought that equity should prevail. This principle remains today. Equity is superior to Common Law.
Bill of Rights – Limited the rights of the parliament to make laws without the parliament. The Sovereign could only execute sovereign laws through the parliament.
The Act of Settlement – Still in force today. The British Sovereign can only be a protestant. Prince Charles has been trying to change this. Effectively, the Monarch of Australia could only be a protestant. The act was bought in to prevent any members of the Stewart family presiding over the throne.
Ejectment
Legal Fiction
Instead of selling land, people would sue each other. Names would be made up i.e. John Doe or Richard Roe (names which still remain today).
Problems occurred in equity. In later years the judgements of law were recorded and the systems of precedence soon developed (started in 1621 in the reign of Lord Nottingham).
Lord Elden – anally retentive. Took years to write a judgement (e.g. up to 16 years!).
Jeremy Bentham – Utilitarian. Maximise the pleasure of the people in society and minimize the pain. Dog law. Nobody knew what common law was. Thought that there should be clear, codified law. Procedure was reformed at this time.
Law of Deodand was removed in the 1800’s with the advent of the train (i.e. if a train ran over somebody, the family could not arrange to take the train !)
Criminal procedure rationalized but very harsh – loads of capital punishment. Also convicts being sent elsewhere. Massive expansion in the laws available to be broken.
Judicary acts – occurred in England in the 1870’s. Started the supreme court of judiciary. The Judiciary Court would be split up to consider different matters, but they would no longer be split up to deal with equity or common law separately. Fusionists believe that equity and common law were fused together during the Judicary Acts. The opposite view was that the courts were fused but the laws were not. Combined in administration but not law. Therefore, if you wanted to look at a contract, you would need to look at the common-law of the contract as well as the equity law of contracts. Judges are still fighting about this though in Australia, Fusion did not occur in NSW until 1970. Be careful about saying that you are being schooled in a common law system (judge made law system) – BUT, there is 2 main bodies: a common law proper (laws which came from Kings Bench, Common Please, ex checker) and the body of law that was developed by chancellery. Together these were the judge made law system that was brought to Australia.
Summary
The British constitutional system that we have partly inherited is really a system of historical accidents and compromises – struggles for power about what the law should be; and the law being used as way of implementing or spreading that power out. We have a separation of powers as we have a separation of functions between the legislature, the executive and the judiciary, but we only have this because of an accident. This accident was 1000 years worth of British History – 1000 years of debate determining what the king can or can’t do, what the judiciary is or isn’t allowed to do, and what the legislature is or isn’t allowed to do.
We are not like the Americans; there is no break in the history where we can say “The Australian System starts from now”. They pulled their legislation up by their own bootstraps. There was a declaration of independence that decided what type of govt. they would like to have. Ours is based more heavily on history. One of the principles that came out of this struggle is that law should be separate or different from power. This is the idea of the rule of law – i.e. that the law is powerful, not the people that make the law. Therefore, even the sovereign is subject to our legal system. It’s not the case that the sovereign makes the law. In the 1900’s, this became an important principle in WW2 where we had competing countries with competing governments and systems of law whereby power and law are the same thing (the Furor system).
The Rule of Law stands for three basic propositions:
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The law should operate with certainty: a normative “ought to be principle” (see Cokes arguments with Kings James I – “It’s not what you want; it’s what the logic of common law dictates”).
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The law should be about equality: “ought to be principle” (though often it’s not –are you a Catholic or are you a Protestant?/Are you a British Subject or an Aborigine? Until 1834, slavery existed in common law. Until 1870, married women were the property of their husbands – no right to sue, enter a contract etc).
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Generality: The law applies the same way to everyone (we all are subject to the same laws – no distinction based on rank, wealth etc).
Albert Van Dicey “An Introduction to the Study of the Law of the Constitution”. 2 pillars of law in our system;
- Principle of the Rule of Law (as discussed).
- The idea of parliamentary sovereignty – i.e. we require the sovereign to act through parliament.
These two principles are always in conflict. Our sovereign wants to take away some of the Rules of Law to combat terrorism (e.g. retrospective laws to find people guilty of an offense). Another e.g. Habeas Corpus; the right to be brought before an officer of the law to be able to plead your case – yet authorities argue for longer periods of detainment before having to release a suspect.
Power loves power. Unfortunately, sovereigns never want to get smaller.
