A HISTORY OF COMMON LAW.
Common law can be traced to the 9th century AD. There are very few written sources for England prior to that date. The Anglo-Saxons who lived in England are regarded as having founded common law. In fact their nostra were not entirely original. The Angles and the Saxons had come from what we now call Germany and the Netherlands. They drew on legal customs from their ancestral homelands. The had some classical learning. The notion of jury trials existed in Ancient Rome and Ancient Greece. Trial by jury remains an important component of common law although is has largely been removed from Roman law.
In Anglo Saxon England is a person was caught red handed then he or she was punished on the spot. This could include whipping but it was sometimes summary execution if the offence was grave.
When there was some doubt if someone committed a crime then he or she was put on trial. A jury consisted of 12 men who knew the defendant. This is a major difference from the current situation where the jurors must not be personally known to the defendant. The Anglo Saxons believed that the jurors must know the defendant because then they would have an idea if this person was trustworthy or not. The flaw with the jury knowing the defendant is tnat they would have an opinion of the defendant. They might be friends or enemies of his or hers.
The jury would hear the evidence and then vote guilty or not guilty. All 12 jurors must vote guilty for the defendant to be found guilty.
There were trials by ordeal. This meant a defendant might be forced to pick a stone out of boiling water. The wound would then be bandaged. If the wound was healed after three days the man was innocent because God had cured him. If the injury was not healed after three days this was indicative of guilt.
The Anglo Saxon kings of England said that the people had certain rights. The kings had duties and were obliged to rule fairly and within the law. The king had to protect the independent status of the Catholic Church which was the only form of Christianity in the country at the time. The king was not allowed to tax people without the agreement of the Witenagamot (a precursor of Parliament). Despite this notion that people had rights some people were still thralls (slaves). Society was unequal. Noblemen – called thanes – had more rights than everyone else. The notion of inegalitarianism was upheld by the clerical authorities.
In 1066 England was conquered by William the Duke of Normandy. He later conquered some of Wales. He was crowned King of England on Christmas Day 1066. He took some Roman law traditions with him from the continent. At his coronation he swore to uphold England’s legal traditions. In fact he did very little to honour this vow. The Witenagamot stopped meeting.
Most people were serfs. Serf is derived from the Latin ‘servus’ meaning slave. Serfs were not exactly slaves but they were not free either. They had to do unpaid work for their landlord. They also had to work on land they rented from the landlord to produce food for themselves. They paid rent for this land. The were obliged to do corvee – unpaid road work. If they wished to grind corn they were only permitted to use the landlord’s mill and pay over the odds for it. They had to obtain permission to wed or become a priest, monk or nun.
In the 12th century English and Welsh people settled in Ireland. The east coast of Ireland was under the control of the crown. Common law started to prevail there. The rest of Ireland followed Brehon Law. Over the centuries common law spread throughout Ireland.
In the Middle Ages there were separate ecclesiastical courts for clergy. Clergy meant not just monks or priests but anyone who worked for the church in any capacity. At one stage anyone who could read could claim benefit of clergy i.e. to be tried before an ecclesiastical court. For ordinary offences such as theft or battery the sentences handed down by the ecclesiastical courts tended to be risibly mild such as saying prayers. The king’s courts were far harsher. As many defendants as possible opted to be tried before ecclesiastical courts. This was an era when the death penalty as employed liberally. pickpockets had fingers cut off. Poaching one of the king’s deer was punishable by blinding or castration.
Ecclesiastical courts only came down like a tonne of bricks on offences that were specifically religious. These included blasphemy and apostasy. To take the Lord’s name in vain was a grave crime. To profess one’s disbelief in Christianity was to make one liable to suffer death. Sacrilege was also severely penalised. This meant profaning the mass.
Universities were ecclesiastical institutions. They were therefore semi-independent of the state despite having royal charters. The two English universities – Oxford and Cambridge – had their own courts and even police forces. Undergraduates or lecturers who transgressed were arrested by the university’s police, tried by its courts and detained in its prisons. The university even executed people very occasionally. Universities did not have jurisdiction only over its own members but anyone who committed an offence on its property. The universities owned most of the cities of Oxford and Cambridge at the time. This system was abolished piecemeal and largely ceased to exit in the 19th century. Only in 2000 was the Oxford University Police Force abolished.
Henry II tried and failed to rationalise the system and take the laity out of the purview of church courts. Only under Henry VIII were the ecclesiastical courts reined in. The church courts after him dealt with simony among the reverend clergy and suchlike matters. The church courts still exist but deal only with clergy and are more like disciplinary panels. They cannot issue punishments like imprisonment. They can only unfrock a cleric.
NORMAN RULE and MAGNA CARTA
Kings of England after William the Conqueror also swore to uphold people’s rights. A major rebellion against King John compelled him to sign Magna Carta in 1215. King John was fighting a very unsuccessul war against France and was resorting to unjust means to get money. The revolt was led by barons and not the common people. The barons were irate about excessive taxation especially one in lieu if military service – a tax called scutage. They detested King John not letting them inherit property or charging them a huge relief tax in order to be allowed to inherit property. John had been taking their wives and children hostage. If a man was facing trial he was held in prison indefinitely until he paid for the trial to begin. John was using any excuse to extort money from people.
Magna Carta (the Great Charter) re-stated some rights that were already held to exist. It also created some new ones. Magna Carta is very over blown. It only applied to free men and most men were not free.
Magna Carta set a limit to the amount and frequency of the tax called scutage (shield money). It said the king was not allowed to prevent people inheriting property. He was forbidden to take hostages. He was not to delay or deny justice to anyone. Note that one says ”Magna Carta” and never ”the Magna Carta”. In Latin the definite article is already contained in the words ”Magna Carta.”
King John repudiated Magna Carta as soon as he could. He said that he had only agreed to it because he was compelled to do so by a rebellion. A promise extracted under threat has no value. The Pope ( religious leader of the Christians in western Europe) backed King John up on this.
Magna Carta was not a world trail blazer. Other countries had more advanced charters. Hungary had the Golden Bull long before Magna Carta and the rights granted were more extensive in the Golden Bull. Note that the word ‘bull’ here is not an animal. It is derived from the Latin word ‘bulla’ meaning led because the document was sealed with led. Nor indeed was this charter in Hungary ‘bull’ in the other sense!
King John’s son, Henry III, then became king. Henry III later re-issued Magna Carta. English monarchs all paid lip service to Magna Carta even if they did not always honour it.
Magna Carta says nothing about Parliament! There is no mention of voting rights or of freedom of the press. There were no printing presses in Europe then. Even if there had been only about 10 per cent of the population could read. The Catholic Church was the mass media at the time. The Church was guaranteed its independence from royal control. The Church was to be governed by the Pope and not the crown.
A parliament met in 1265. Henry III was obliged to summon parliament because it was demanded by barons in a later baronial rebellion led by Simon de Montfort. Parliament was elected major property holders only. There was a House of Commons with an elected element. Two knights from each shire (county) and two burgesses (wealthy men) from each town were sent to Parliament. Parliament was very unrepresentative because only the affluent were allowed to vote. There was also a House of Lords; those with noble titles sat of right. Bishops were ex officio members of the House of Lords. Parliament sat very irregularly. It only assembled when the king summoned it to meet. The king might summon Parliament – an election would be held. Parliament would gather in London or wherever the king told them to meet him. Parliamentary business would be transacted for a few months and then the king would dissolve Parliament. Parliament would not meet again until the king chose to call it. That might not be for several years.
Parliament made law.
COURTS OF EQUITY.
English Law was very rigid in the Middle Ages. Sometimes there was no statute to cover a particular situation.
Judges developed equitable maxims to deal with unforeseen situations.
Statute law was harsh and inflexible. Equity was intended to resolve this.
The Lord Chancellor was the head of the king’s writing department. All records of court decisions, tax payments and correspondence came to the Chancellory of which the Lord Chancellor was head. The Lord Chancellor was always a priest. The Lord Chancellor was also the father confessor to the king. He was the keeper of the king’s conscience. The Lord Chancellor would try to induce the king to be merciful.
The role of the Lord Chancellor in recent centuries has become separated from that of a clergyman. However, in the coronation of Elizabeth II the last vestige of this confessorial role was seen. When the Archbishop of Canterbury administered the oath to Her Gracious Majesty he admonished her, ”Be thou not so strict that thou forgettest mercy and be thou not so merciful that thou art remiss.”
Various equitable maxims were developed which helped courts handle difficult situations. The maxims are originally in Latin and often quoted in Latin to this day. However, here we shall render them in English translation
”He who comes to equity must come with clean hands.” That means if someone seeks the assistance of equity he must not be a malfeasant or have done something inequitable himself. This does not necessarily mean something illegal. If the claimant has been a sharpster then he is likely to be given short shrift.
”Equity will not assist those who sleep on their rights.” If you want to make a claim in equity you should do it as soon as you find out about the breach of your rights.
This is how equity developed in parallel to law. There were separate courts of equity at the time. Courts of law and courts of equity were finally amalgamated by the Judicature Acts in the 1870s.
There were church courts in the Middle Ages. These dealt with clergy. Clergy did not mean just priests, monks and nuns. ANyone who worked for the church could claim to be clergy. Those who could read could even claim to be clergy. Henry II tried to resolve this situation because ecclesiastical courts were very mild. Henry II failed to do so.
In the 16th century Henry VIII abolished the Catholic Church. He founded the Church of England. Ecclesiastical courts lost almost all of their remit.
Trials in the king’s courts were not fair as we would see them now. Defendants had no lawyers. The prosecution would be led by lawyers. Defendants were not always permitted to speak in their own defence. Sometimes they were not even present at the trial! The court only heard testimony and saw evidence displayed by the prosecution.
In the early 17th century Scotland and England got the same monarch. However, the separate legal systems remained. The Scots system is more Romanised than the English one. Nevertheless, Scots law is common law up to a point. England and Scotland learnt from each other as did Ireland.
Common law is often called English Law. It would be more accurate to say English and Welsh Law.
SIR EDWARD COKE
He was a famous 17th century jurist. Coke advanced the notion of rights. The monarch at the time was James I. James I was wedded to the notion of the divine right of kings. James I believed that the monarch had untramelled power and that any rights a king chose to grant were just that: a choice. The king did not have to allow his subject any rights at all. Sir Edward Coke claimed that the law clearly showed that subjects had rights and that monarchical power was strictly limited. The tension in this debate eventually led to the English Civil War in the 1640s.
Arbitrary power was circumscribed through the 17th century. Judges gradually became more independent.
Sir William Blackstone was a famous 18th century barrister and jurist. He wrote a multivolume jurisprudential digest entitled ‘Commentaries on the laws of England.’ This was the first systematic attempt to summarise the laws of the country since the Middle Ages. His magnum opus is known simply as Blackstone.
There is a barristers’ chambers named in honour of Blackstone. Nota Bene his named is pronounce ”BLACK stun” not ”black STONE.”
Blackstone said the judges were ”living oracles of the law.”
Criminal was very severe at the time. Some saw to reduce its severity. People could be executed for dozens of offences. This included grand larceny – stealing something worth more than 12 pence. That was half a day’s wage for craftsman. Someone’s wallet could easily contain this amount of money.
Crimes against property attracted condign punishment. Crimes of violence were mildly penalised unless it ended in the death of the victim. Sir William Blackstone reflected lugubriously that there were over 160 offences which attracted the death penalty. Islamic law was compassionate by comparison.
Law was still somewhat amateurish. Judges were known to hear cases whilst in a crapulous state. Judges were not always neutral. They often questioned defendants. They were supposed to act for defendants but were sometimes prejudiced against those accused of crime.
The right to fair trials were enhanced. Judges became more neutral.
Judges would only turn up to trials sober. Defences lawyers were permitted. Someone who was too poor to afford one would be provided with a lawyer for free in the case of a capital trial.
Legal education became formalised. Universities started to award law degrees. Likewise people were required to pass bar exams in order to be called to the bar. Prior to that men had hung around an inn of court and attended lectures, watched trials, lived at an inn and eaten a certain number of dinners in their inn of court and acted as pupils. They had been called to the bar after a very informal process.
The Offences against the Person Act (1861) defined crimes of violence. It also prohibited procuring a medical abortion except to save the life of the mother.
Lord M’Naghten, a criminal judge, found someone to be guilty but insane. This was the first time someone who was proven to have committed a criminal action was declared to be not guilty by reason of insanity. Although the man had committed the actus reus (guilty act) there was no mens rea (guilty mind). This is called the M’Naghten judgment.
Towards the end of the nineteenth century a most distinguished barrister named Edward Marshall-Hall began to make advances in criminal defence.
Judicial neutrality was not as firmly entrenched in the 19th century as it is today. The Conservative Prime Minister Lord Salisbury boasted that he only appointed Conservative supporting judges. This was another bone of contention. Judicial appointments were murky. Informal soundings were taken among existing judges. ”We are considering appointing Ambrose Snodgrass to the bench. Is he a good egg?” This created a self-perpetuating judicial class.
In the United States judges are elected except for Supreme Court justices who are appointed by the president but are still subject to Congressional approval. In the United Kingdom it is held that electing judges politicises the judiciary. In the other hand the American system is above board.
The trouble with electing judges s they are less likely to make just ruling when this would be electorally disadvantageous. A judge should be indifferent to public opinion – neither seeking to placate it mot to aggravate it. It harks back to the legal maxim ”fiat Justitia ruat caelum” meaning ”Let justice be done though the sky should fall.” This expresses the belief that a judge should return a just ruling no matter what the consequences.
In the late 19th century a celebrated jurist enhanced understanding of the law of contract. He was one Algernon Venn Dicey. Dicey was the Vinerian Professor of Public Law in the University of Oxford. Professor Dicey held the same chair (professorship) as Blackstone had held. Dicey was also virulently racist. This does not diminish the value of his teaching on contract.
The notion that children deserved softer treatment was enshrined in law. Children were sent to special juvenile courts and borstals in the case of crime.
The Children’s Act prohibited people from supplying those under 16 with tobacco and alcohol. Children were required to attend school for longer and longer.
Women were allowed to become barristers from the 1920s.
Legal aid was introduced after the Second World War. This provided reduced price or even free legal advice for people on low incomes. The cost of this to the taxpayer increased and increased.
human rights became an express concept in law. Some judges were sceptical about the need to introduce such concepts believing that they instinctively knew what rights existed.
The laws on divorce were relaxed as divorce became more common.
Judges became bolder at creating law. Some felt this was judicial activism.
The death penalty was last used in England in 1964. It was suspended in 1965 after a lengthy campaign and formally abolished in 1998.
The use of expert witnesses was pioneered in the United States by Melvin Belli. This was the copied in the United Kingdom.
Pupils came to be paid at the bar in the 1990s.
In the second Millennium the judicial appointments system was rationalised. Politicians lost all their powers of patronage over the judiciary.