{"title":"The Jury and Pleading","authors":"J. Baker","doi":"10.1093/OSO/9780198812609.003.0005","DOIUrl":"https://doi.org/10.1093/OSO/9780198812609.003.0005","url":null,"abstract":"This chapter concentrates on the jury and the history of pleading, which was at the heart of the common-law system. Pleading was the means of defining a factual issue which could be tried by jury. In medieval times pleadings were framed orally, and most legal argument occurred at the pre-trial stage. In the Tudor period this was turned round: pleadings were settled in writing, and legal arguments took place once the facts had been found. Special verdicts enabled more facts to be put before the judges than were in the pleadings. The change was dependent on the ‘motions in banc’, particularly the motion in arrest of judgment, and later the motion for a new trial, which worked like a modern appeal save that they took place before judgment. The effect of dispensing with civil juries is considered, and the chapter ends with an account of procedural reforms.","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":"123881924","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 Making","authors":"J. Baker","doi":"10.1093/oso/9780198812609.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780198812609.003.0012","url":null,"abstract":"This chapter examines the history of case-law, legislation, and equity, with particular reference to legal change. The common law was evidenced by judicial precedent, but single decisions were not binding until the nineteenth century. It was also rooted in professional understanding, the ‘common learning’ acquired in the inns of court. It was based on ‘reason’, operating within a rigid procedural framework. Legal change could be effected by fictions, equity, and legislation, but (except during the Interregnum) there was little systematic reform before the nineteenth century. Legislation was external to the common law, but it had to be interpreted by common-law judges and so there was a symbiotic relationship between statute-law and case-law. Codification has sometimes been proposed, but with limited effect.","PeriodicalId":321735,"journal":{"name":"Introduction to English Legal History","volume":"54 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":"130159403","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 Legal Profession","authors":"John Baker","doi":"10.1093/OSO/9780198812609.003.0010","DOIUrl":"https://doi.org/10.1093/OSO/9780198812609.003.0010","url":null,"abstract":"This chapter traces the history of the English legal profession, which begins around 1200. From the start there was a distinction between advocacy and attorneyship. The pleaders in the Court of Common Pleas became around 1300 the order of serjeants at law, from whom the superior judges were chosen. A law school for ‘apprentices of the Bench’ in the thirteenth century was remodelled in the next century as a collegiate system, the inns of court and chancery, with its own learning exercises and degrees (bencher and barrister). Barristers practised as advocates, but not in the Common Pleas. In Tudor times solicitors appeared, as general practitioners. Serjeants lost their primacy to the newer rank of king’s counsel, but survived into Victorian times. Accounts are given of the judiciary and its independence, of the Civilian practitioners in Doctors’ Commons, and of the transfer of legal education to the universities.","PeriodicalId":321735,"journal":{"name":"Introduction to English Legal History","volume":"38 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":"117228624","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 Common Law of England","authors":"J. Baker","doi":"10.1093/OSO/9780198812609.003.0002","DOIUrl":"https://doi.org/10.1093/OSO/9780198812609.003.0002","url":null,"abstract":"This chapter traces the origins of the common law of England and explains its boundaries. It was brought into being through the machinery of royal justice as developed in the twelfth century; this was sometimes peripatetic (eyres and assizes), sometimes stationary in the royal palace at Westminster, and sometimes local (justices of the peace). Attention is drawn to alternative forms of justice outside the common law, particularly local custom, mediation, and arbitration. The second part of the chapter explores the boundaries of the common law in relation to the sea, the king’s possessions in France, and the law in Wales, Ireland, and Scotland.","PeriodicalId":321735,"journal":{"name":"Introduction to English Legal History","volume":"43 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":"121680316","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":"Real Property","authors":"J. Baker","doi":"10.1093/OSO/9780198812609.003.0016","DOIUrl":"https://doi.org/10.1093/OSO/9780198812609.003.0016","url":null,"abstract":"This chapter gives an account of uses, and is inserted here because it was their association with the avoidance of feudal revenues which resulted in the principal property legislation. Uses began as factual situations in which land was held for the benefit of another. They grew in popularity as enabling land to be left by will. The common law took no notice of such extra-feudal arrangements, but by the fifteenth century the Chancery had assumed jurisdiction over uses as a matter of conscience. A statute of 1484 attached legal consequences to the use, so that it became an estate in land. Uses incidentally enabled landowners to avoid feudal incidents, and this was tackled by the Statute of Uses 1536, which put an end to wills of land, and the Statute of Wills 1540, which revived them. These statutes are explained in the context of preserving the king’s feudal incidents.","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":"117324945","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":"Quasi-Contract","authors":"J. Baker","doi":"10.1093/oso/9780198812609.003.0021","DOIUrl":"https://doi.org/10.1093/oso/9780198812609.003.0021","url":null,"abstract":"This chapter traces the history of what used to be called quasi-contract but is now part of the law of restitution. It was principally concerned with the receipt of money which belonged in justice to someone else. The earliest relevant action was account, at first limited to agents and then extended to all receivers of money; this was an impracticable action and went into disuse. Actions on the case came to the rescue, particularly the action for money had and received (a species of indebitatus assumpsit). The latter action was used not only in traditional cases of accountability but also where money was received by mistake or compulsion, where income from property was taken by an interloper, or where a party to a failed contract sought rescission. Much of the history is hidden from view by fictions, but Lord Mansfield declared a general principle based on the equity of the common law.","PeriodicalId":321735,"journal":{"name":"Introduction to English Legal History","volume":"19 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":"132917423","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 Conciliar Courts","authors":"J. Baker","doi":"10.1093/OSO/9780198812609.003.0007","DOIUrl":"https://doi.org/10.1093/OSO/9780198812609.003.0007","url":null,"abstract":"This chapter examines the courts associated with the king’s council and the residuary prerogative jurisdiction of the Crown. Such courts were not supposed to meddle with the law of property, or with matters of life and death, since they did not follow the ‘due process’ required by Magna Carta and its progeny, but they nevertheless developed extensive jurisdictions alongside the courts of law. Their procedure was close to that of the Chancery. The principal conciliar courts were the Star Chamber and the Court of Requests, at Westminster, but there were provincial counterparts in the Marches of Wales and in the North. The extraterritorial jurisdictions of the admiralty and the constable and marshal were similarly derived from the royal prerogative and operated outside the common law. The King’s Bench watched all these jurisdictions carefully and checked excesses by means of prohibition and habeas corpus.","PeriodicalId":321735,"journal":{"name":"Introduction to English Legal History","volume":"33 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":"123825204","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":"Legal Literature","authors":"J. Baker","doi":"10.1093/oso/9780198812609.003.0011","DOIUrl":"https://doi.org/10.1093/oso/9780198812609.003.0011","url":null,"abstract":"This chapter surveys the development of English legal literature. It begins with the Latin treatises called Glanvill and Bracton, which by the end of the thirteenth century had given way to more accessible practical works in French. The most important of the new writings were the reports of real cases taken in court, the year books. The evolution of law reporting is traced, and there is an assessment of the changes in the Tudor period, particularly Plowden’s innovative Commentaries. The effect of printing is also considered. Access to case-law was at first primarily via abridgments rather than treatises, but Littleton’s student textbook on Tenures marked a new departure in the fifteenth century. Treatises of comparable importance to Littleton were few, but notable among legal authors were St German, Coke (also a major law reporter), Hale, and Blackstone.","PeriodicalId":321735,"journal":{"name":"Introduction to English Legal History","volume":"2 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":"134045777","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":"Pleas of the Crown","authors":"J. Baker","doi":"10.1093/OSO/9780198812609.003.0030","DOIUrl":"https://doi.org/10.1093/OSO/9780198812609.003.0030","url":null,"abstract":"This chapter traces the history of criminal procedure. The early ‘appeal’ of felony gave way to the indictment, a written presentment approved by a grand jury. Until Georgian times there were few safeguards for the accused other than whatever care was taken by judge and jury. Counsel were rarely involved, except in treason cases; trials were brief; and there were no appeals. The capital punishment imposed on all convicted felons was adjusted in practice by the mechanisms of sanctuary, benefit of clergy, ‘pious perjury’ by jurors, and pardons. Benefit of clergy was originally a privilege of ordained clergy, but the judges contrived to extend it to any man who could read, and Parliament perfected the fiction by extending it to women and the illiterate. Pardons were widely available underlay both the system of transportation and a form of criminal appeal.","PeriodicalId":321735,"journal":{"name":"Introduction to English Legal History","volume":"45 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":"128160229","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":"Judicial Review of Decisions","authors":"J. Baker","doi":"10.1093/OSO/9780198812609.003.0009","DOIUrl":"https://doi.org/10.1093/OSO/9780198812609.003.0009","url":null,"abstract":"This chapter is concerned with the history of mechanisms for reviewing judicial and administrative decisions. It begins with the writ of error, which was confined to errors on the face of the record of a court of record and therefore not an appeal as now understood. But informal methods were developed for reserving points to be discussed by all the judges of England, usually in the Exchequer Chamber or Serjeants’ Inn. Appeals in a wider sense began in Chancery and were not brought into the common-law system till 1875. The ‘prerogative writs’ of prohibition, habeas corpus, certiorari, and mandamus, enabled the King’s Bench to review inferior jurisdictions and also the exercise of power by officials and ministers. It is explained how this grew into the present system of administrative law. There is also a brief account of the rise of tribunals, and how their decisions came to be reviewable.","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":"130776759","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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