{"title":"Persons","authors":"J. Baker","doi":"10.1093/oso/9780198812609.003.0028","DOIUrl":"https://doi.org/10.1093/oso/9780198812609.003.0028","url":null,"abstract":"This chapter is devoted to the history of the law of marriage. The formation of marriage was for many centuries a matter for the Church and its law. In medieval times marriage was held to be a sacrament and indissoluble. Divorce a vinculo matrimonii meant a decree of nullity, not dissolution. Divorce a mensa et thoro, or judicial separation, was available on grounds of misconduct, but the parties were not free to remarry. Bastardy, the status of children born outside marriage, was also for the canon law. The second part of the chapter goes into the common law of coverture, the status of married women, and the slow progress towards giving wives the right to own property and make contracts. It ends with the piecemeal reforms of divorce law, following the establishment of a secular divorce court in 1857.","PeriodicalId":321735,"journal":{"name":"Introduction to English Legal History","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121377927","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Economic Torts and Interests","authors":"J. Baker","doi":"10.1093/OSO/9780198812609.003.0026","DOIUrl":"https://doi.org/10.1093/OSO/9780198812609.003.0026","url":null,"abstract":"This chapter is concerned with the history of a miscellany of wrongs best described as economic torts, and with related concepts. These involve various forms of interference (other than defamation) with a person’s trade or employment or with his other personal and contractual relationships. The areas focused on are monopolies, including patents for inventions, copyright, and the development of intellectual property, deceptive competition, inducing a breach of contract, interference with domestic relations (including per quod servicium amisit and criminal conversation), and interference with labour relations by means of intimidation and conspiracy. A recurrent theme is the extent to which motive, such as furthering an economic interest, may justify injuring another’s economic position, a matter which came to a head with the Trade Disputes Act 1906.","PeriodicalId":321735,"journal":{"name":"Introduction to English Legal History","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115875283","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Superior Courts of Common Law","authors":"J. Baker","doi":"10.1093/OSO/9780198812609.003.0003","DOIUrl":"https://doi.org/10.1093/OSO/9780198812609.003.0003","url":null,"abstract":"This chapter traces the history of the superior courts of common law in Westminster Hall, after they emerged from the undifferentiated Curia Regis of the twelfth century. The most important was the Common Bench, the court for ‘common pleas’ which after 1234 was legally distinct from the court held before the king himself, the King’s Bench. A third court, the Exchequer, was meant for the king’s revenue business. By 1700 all three had become courts for common pleas, by making use of fictions: in the King’s Bench a fictional allegation of trespass in Middlesex (to put the defendant in gaol, with the aid of a writ of latitat), in the Exchequer a fictional allegation of debt to the Crown in a writ of quominus. These are explained. Such techniques did not escape controversy, and the process of jurisdictional conflict and assimilation is related.","PeriodicalId":321735,"journal":{"name":"Introduction to English Legal History","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130869303","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Defamation","authors":"J. Baker","doi":"10.1093/oso/9780198812609.003.0025","DOIUrl":"https://doi.org/10.1093/oso/9780198812609.003.0025","url":null,"abstract":"This chapter addresses the history of the tort of defamation. Although early slander actions are found in manorial courts, the common law at first regarded defamation as beyond its purview and as more appropriate for ecclesiastical courts. But ecclesiastical courts could not deal with accusations of temporal crime or award damages. Soon after 1500 actions on the case were brought for damages caused by injury to reputation, not only by accusations of crime but also by accusations affecting a profession or calling. After some qualms, they could also be brought for spiritual matters, such as unchastity, provided temporal damage was shown. The actions proved embarrassingly popular, and the courts devised ways of deterring plaintiffs, in particular the artificial construction of words in the mildest possible sense (in mitiori sensu). The distinction between libel and slander is explained. Finally, there are observations on libel in printed publications.","PeriodicalId":321735,"journal":{"name":"Introduction to English Legal History","volume":"154 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116909788","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Negligence","authors":"J. Baker","doi":"10.1093/oso/9780198812609.003.0023","DOIUrl":"https://doi.org/10.1093/oso/9780198812609.003.0023","url":null,"abstract":"This chapter traces the history of negligence in tort. The role of fault in the action of trespass vi et armis is somewhat speculative, since the relevant facts were hidden from courts by the plea of Not Guilty. But the concept of inevitable accident seems to be predicated on negligence. Negligence is more visible in actions on the case, though the earliest examples were contractual in essence. The first signs of a distinct tort of negligence, where there was no contract or custom imposing liability, appear in the seventeenth century, and in the next century there emerges a general principle that everyone must take reasonable care not to injure his neighbour. The duty of care was gradually enlarged between the eighteenth century and the present, especially with the removal of obstacles connected with the principle volenti non fit injuria and with the old notion that trespass would not lie for words.","PeriodicalId":321735,"journal":{"name":"Introduction to English Legal History","volume":"24 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132393388","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Law and Custom before 1066","authors":"J. Baker","doi":"10.1093/OSO/9780198812609.003.0001","DOIUrl":"https://doi.org/10.1093/OSO/9780198812609.003.0001","url":null,"abstract":"This chapter prepares the ground by exploring the character of law and custom in England before the emergence of the common law. The so-called codes issued by some of the Anglo-Saxon kings, especially the great doom-book of King Alfred, were not comprehensive bodies of law. Disputes were settled by customary methods, mostly in local assemblies, in the county and hundred. There were no lawyers or juries. Disputes of fact were tried by putting a party on oath, and in the most serious cases requiring the oath to be supported by a physical ‘ordeal’. Some features of the common-law system were in place before 1066, particularly the concepts of royal and seignorial jurisdiction, the pleas of the Crown, the delegation of royal authority to sheriffs and franchise-holders, and the use of writing as an exercise of authority.","PeriodicalId":321735,"journal":{"name":"Introduction to English Legal History","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132534031","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Property in Chattels Personal","authors":"J. Baker","doi":"10.1093/OSO/9780198812609.003.0022","DOIUrl":"https://doi.org/10.1093/OSO/9780198812609.003.0022","url":null,"abstract":"This chapter considers the history of the law governing movable chattels, which was different from the law of real property and of chattels real (such as leases of land). The basic principles changed little over time. The chapter explores the ways in which property in movables could originate, the modes of transfer, the ways in which property could cease, and how far future interests could be created in chattels. The remainder of the chapter deals with the remedies to protect chattels, beginning with detinue and its defects. Actions on the case lay from the fourteenth century for damaging goods. The action on the case called trover and conversion, which rested on a fictitious loss and finding, came from the sixteenth century to be the usual action for misappropriating goods. Though in form an action in tort, it gradually became a proprietary action.","PeriodicalId":321735,"journal":{"name":"Introduction to English Legal History","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121867634","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Forms of Action","authors":"J. Baker","doi":"10.1093/OSO/9780198812609.003.0004","DOIUrl":"https://doi.org/10.1093/OSO/9780198812609.003.0004","url":null,"abstract":"This chapter is concerned with writs, and principally with the ‘original’ writs which commenced an action at common law. Though designed as a means of administrative regulation, a decision to stop inventing new ones made them definitive of the common law. The procedures initiated by each type of writ – the ‘forms of action’ – dominated English law until the nineteenth century. The principal varieties of writ were praecipe (demanding a right) and trespass (complaining of wrong). The latter were at first limited to trespasses with force against the king’s peace, but this requirement was dropped around 1350 and writs of trespass ‘on the case’, tailored to a plaintiff’s facts, enabled the common law to begin its escape from the formulary system and to develop a wide range of new remedies. Some account is also given of judicial writs, which controlled process once a suit had been originated.","PeriodicalId":321735,"journal":{"name":"Introduction to English Legal History","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124545110","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Ecclesiastical Courts","authors":"J. Baker","doi":"10.1093/OSO/9780198812609.003.0008","DOIUrl":"https://doi.org/10.1093/OSO/9780198812609.003.0008","url":null,"abstract":"This chapter outlines the history of the Church courts in England. In medieval times they were part of a transnational system with the pope at the summit, although the ‘ecclesia Anglicana’ was recognized as a distinct entity in Magna Carta and medieval English kings exercised some authority over Church matters. A dispute between Henry II and Archbishop Becket secured the ‘benefit of clergy’ but did not exempt the clergy from temporal justice in civil matters. The jurisdictional boundary thereafter was generally clear, and was controllable by the royal writ of prohibition. The break with Rome in 1534 had a minimal effect on the daily work of the ecclesiastical courts, which continued to deal with matrimonial questions, probate, and intestate succession to personalty, until Victorian times. New appellate courts were the High Commission (abolished in 1641) and the Court of Delegates, whose jurisdiction was transferred to the Privy Council in the 1830s.","PeriodicalId":321735,"journal":{"name":"Introduction to English Legal History","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117258397","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Other Interests in Land","authors":"J. Baker","doi":"10.1093/OSO/9780198812609.003.0017","DOIUrl":"https://doi.org/10.1093/OSO/9780198812609.003.0017","url":null,"abstract":"This chapter is concerned with the history of interests in land not already dealt with. The term of years, or leasehold, began as a chattel interest but changed character when it was used as a substitute for subinfeudation after 1290. The 1499 decision that possession could be recovered in the action of ejectment turned it into a ‘chattel real’. Villein tenure, renamed ‘copyhold’ in the fourteenth century, existed beyond the common law, in that it was regulated and protected by manorial custom; but the availability of ejectment to copyholders brought it within the common-law scheme of estates in the sixteenth century. The trust also became an ‘equitable estate’ in land, with different purposes from the medieval use. Mortgages were of considerable practical importance, though not until modern times as a device for buying property; the various forms are here outlined.","PeriodicalId":321735,"journal":{"name":"Introduction to English Legal History","volume":"60 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129381982","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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