Historical Developments of English law
A summary of the origins of English law
English law is the product of history. It has grown out of a number of historical sources such as local customs, the common law and equity, and legal sources such as legislation and case law. Below we will trace some of the main historical sources.
The development of English law is interesting, especially for those students who have studied history or who can recall from their schools days learning about the ‘Battle of Hastings’ of 1066. You may remember that King Harold was killed during the Battle when an arrow pierced his right eye. You may even remember the ancient English race were called Anglo-Saxons and that they were defeated in the great Battle by the Norman’s. The name, ‘William the Conquer’ or ‘William of Orange’ may be familiar to you and the fact that he was French. But did you know that: * before the Norman invasion, England had no central system of law?; * the Norman’s and their heirs were actually responsible for bringing together the hotchpotch of rules and customs which existed in the various counties and boroughs before they invaded and assisted in the development of laws common to all?; * the Norman’s created a court structure which helped shape the court system we know today? Read on!
Historical Sources - Customs
The foundations of English law were laid well before the Norman Conquest in 1066. Prior to this time, laws in Anglo-Saxon England consisted of various customs (or rules) created to protect rights and prevent unacceptable activities. Customs were either ‘local’ in nature or they were ‘mercantile’, relating to trade. We will focus on local customs. These differed from county to county, but generally, in order to claim a right arising under a local custom, the claimant had to show that the right: existed since ‘time immemorial’ (that is, 1189); always existed since its creation; could be exercised without someone objecting; was well known and not exercised secretly; did not conflict any other law; and its application limited to a particular region. Many customs disappeared as the common law developed, others were abolised by Act of Parliament. However, some customs still exist today such as local rights of way over land.
Claims to a right under a custom were heard by appointed members of boroughs and shires (districts), mainly people with land and influence within the local community. Over the years, these individuals came to be known as ‘sheriffs’ and had power to hear and pass judgement in both civil and criminal cases in local courts.
Common law
The Norman victors started the process of pulling together the various customs and rules of the different Anglo-Saxon counties and boroughs into one central system of law or ‘common law’. However, the common law did happen overnight. It took the Norman’s and after them, their heirs, some 200 to 300 years to develop the common law.
Between 1066 and 1400, William I (and his heirs) stamped his authority on the English legal system. He took over ownership of all English land, granting those loyal to the Crown a limited right to own his land. As time passed, he needed some way of protecting his interest in land and overseeing disputes concerning land ownership. This was achieved by creating a central court (the King’s Court, see Appendix 1) and appointing judges (and before these, ‘general eyres’) responsible for travelling around the country to hear local disputes. As a result of this, a unified, system of law common to all started to evolve.
Between 1278 and 1400, sheriffs lost most of their civil and criminal powers. In 1278, the Statute of Gloucester started the erosion of the monopoly held by local courts over civil claims. These powers were gradually taken over by the King’s Court as more people complained of injustices. In order to administer this new system of country-wide justice and deal with the growing numbers of claims being made, new courts were created, see Appendix 1 at the end of this Chapter.
The writ system. By the 12th century, important central civil remedies were introduced under the ‘writ system’. The writ was a way of complaining to the King about some wrong or denial of justice and requesting a remedy. Over time, a Register of Writs was made up and kept in the Chancery, listing a number of wrongs which could be committed and their remedy. The first writs basically catered for those with money and status and therefore mainly concerned protection of land rights. That being said, the writ (along with the decision of travelling judges) did help English law to become one central body of laws common to all.
Writs were not used for criminal remedies. These were obtained in following ways: from 1066 to the end of the 14th century, the complainant could use the appeal of felony system, under which, the complainant (and not the Crown) brought the offender to local courts (and when these disappeared, the King’s Bench). The offender could then request trial by battle; from the end of the 14th century onwards, the appeal of felony disappeared, replaced by trials on indictment in front of a group of people known as a ‘jury’.
Problems with the development of the common law. The development of laws common to all was not without its problems. Firstly, local courts and sheriffs did not disappear overnight. Sheriffs and landowners continued to administer their own style of justice in local courts, and their decisions could easily be influenced by bribes. Secondly, in order to bring someone to court, the complainant needed money. The wealthy could afford to pay witnesses or even court officials to do and say what they wanted. The poor could hardly afford to bring a case to court and if they did, would probably be defeated if they were up against a landlord or someone respected in the community.
Thirdly, the operation of the writ system became rigid. In order to claim a right at common law, the complainant had to find the appropriate writ. For example, if someone sold a horse and did not receive thefull payment owing, they would have to go to the Register of Writs and find a writ to fit their claim. If no writ existed, the complainant had no remedy in law. This was known as ‘ubi remedium ibi ius’. Additionally, writs had to be purchased, so obviously, if the complainant was poor, there was no way they could afford to complain to the King. Civil claims under the writ system became limited to established ‘forms of action’ (or claims) such as claims relating to rights in land, return of money or goods or debts and breaches of the King’s peace (known as ‘the writ of trespass’). Areas such as trusts and mortgages were not covered.
In order to remedy this situation, clerks in the Chancery attempted to alter existing writs to fit new claims. This was allowed initially. However in 1258, the Provision of Oxford was passed preventing creation of new writs. The injustice created by this provision was obvious. The English legal system would have ground to a halt in 1258 if new writs could not be created to cover new wrongs in the developing society. This was recognised by common law judges and so in 1285, the Statute of Westminster allowed clerks of the Chancery to alter existing writs.
Equity
Equity means ‘equality’ or ‘fairness’. The principle of equity came into existence towards the end of the 14th century in response to citizens dissatisfied with the common law courts and writ system. Equity did not replace the common law, but simply made up for its failings, acting as a separate and independent system of justice. It is sometimes said to have acted as a ‘gloss’ on common law.
More and more people complained to the King. Over time, these complaints were passed on to his Lord Chancellor to deal with. The Chancellor created new courts to hear these injustices, see Appendix 2. The Chancellor could make rulings on matters not previously covered by the common law such as trusts and mortgages. He could recognise rights of the poor and grant remedies at a responsible cost. The Chancellor even overturned common law decisions. The new rights and remedies arose mainly between 1529 and 1827. For the equitable remedies, see Appendix 3. The new equitable rights mainly covered rights over land and trusts.
Conflict between equity and common law. Both systems worked side by side. Complainants preferred the courts of equity because their decisions were obviously more just, so these courts became more popular. Common law judges objected to their decisions being corrected by the courts of equity and used every opportunity to reject the power of these courts. For instance, in 1598, the equitable Court of Requests (see Appendix 2) was declared illegal by common law judges. Something had to be done to resolve this conflict. This happened in 1615 following the Earl of Oxford’s Case. The King, James I decided, after consulting with his Attorney-General, Sir Francis Bacon, that where there was conflict between equity and common law, the equitable decision ‘prevailed’ or stood over the common law decision.
The Judicature Acts of 1873 to 1875 and the English court structure. These Acts of Parliament finally resolved the conflict between equity and common law by abolishing the common law courts and the equitable Court of Chancery (see Appendix 2) and transferring their powers to one Supreme Court of Judicature. The 3 main royal courts of common law (see Appendix 1) became the Queen’s Bench Division and the Court of Chancery became the Chancery Division of the High Court. All courts had power to deal with both common law and equity matters. The Court of Appeal was also created by these Acts as the final appeal court. However in 1876, the Appellate Jurisdiction Act confirmed the House of Lords as the final appeal court.
For sake of completeness, regional courts known as the ‘Assizes’ (see Appendix 1) remained until 1971, when the Courts Act abolished these and replaced them with Crown Courts. The Family Division of the High Court was created in 1970 by the Administration of Justice Act. County Courts were established by the County Courts Act 1846. Magistrates’ Courts survived from the old courts of ‘petty sessions’ or ‘police courts’.