Sunday, 13 January 2013

SUMMER SNIPPETS: ‘The Origins of the Common Law’

Origins of the Common LawMore interesting snippets from another of the books on my summer reading list—this time from The Origins of the Common Law by Arthur Hogue, one of the few books on what, to me, is a fascinating story on the origins of our modern civiilisation.

“[Common law in the Middle Ages was] simply the body of rules prescribing social conduct and justiciable in the royal courts of England … in competition with concurrent rules enforced in other courts. Save when a matter of freehold was at issue, Englishmen were not compelled to present their causes before the king’s courts … [however] by the end of the thirteenth century the common law had absorbed the business of its competitors [being primarily the local courts of the counties or boroughs, church courts, and baronial overlords’ courts] and may have borrowed heavily from them in the process of aggrandizement.”

In the time before there was much parliamentary legislation, where would royal judges find the common law? An answer to this question leads directly to the writ system and the Register of Writs… George Spence has defined the original or originating, writ as ‘an order from the king under the Great Seal … commanding [the defendant] to appear in the king’s court at a certain day to answer the complaint. Every writ was founded no some principle of law … which gave the right on which the action was founded and the facts were stated with so much detail only as to bring the case within such principle of law. Each order, or writ, acquired a name…”

The  entire formula of the writ Praecip quod reddat [the principal writ for the recovery of land in the King's court] can serve as an  illustration of an original royal writ…  Elements essential for any trial are either plainly stated or clearly implied… [The aggrieved man] actively seeks the aid of eth royal courts in the recovery of his property … he states the facts of the case … the defendant is ordered to obey the king’s command. If he refuses, a trial is set…  By implication, this writ reveals concern on the part of the king that men throughout the realm shall enjoy undisturbed possession of property to which they have a right and that to accomplish this purpose the royal authority will act, when called upon, through the royal Chancery, the sheriff, a royal agent, and the courts of justice.”

During the twelfth and thirteenth centuries, the tendency was in England to create an appropriate write for the protection of every private right or interest recognized by the royal courts… [T]he writ system hardened and set in the fourteenth century. Thereafter a plaintiff might brood on the maxim, ‘No writ, no remedy.’”

“[There was] an extremely rapid increase in the number of writs during the thirteenth century—from thirty-nine writs in the treatise called Glanvill to four hundred and seventy-one about a hundred years later…”

In England, the old forms of action have largely been abolished as the result of nineteenth-century legislation. And in most of the United States, there is usually but one action, called an action at law and equity. A knowledge of the old writs is still useful, however, for understanding common law principles… ‘The forms of action we have buried,’ write Maitland, ‘but they still rule us from their graves.’”

Litigants were not compelled to seek the king’s justice [but defendants were compelled to meet it]; only in matters touching freehold did the Crown enjoy a monopoly over judicial business. But because English subjects gave then their business, gradually the medieval royal courts starved out, rather than crushed out, their competitors [so] by the end of the thirteenth century the royal courts were rapidly becoming courts of first instance for free men of the realm.”

They provided the best justice available, for several reasons. First, the medieval jury … was preferable to older modes of trial such as ordeal … Second … royal jurists were superior to feudal lords and manorial bailiffs… Third, the incontestable validity of royal records was preferable to the records and fallible memories of suitors of local courts. Finally, decisions of the royal courts were enforced by an authority with wealth and power not to be challenged by any English subject…”

Legal concepts now lusted about the phrases ‘rule of law’ and ‘due process’ trace back to [the Magna Carta and] the quarrel of King John with his baronage.”

From the beginning the Great Charter [i.e., the Magna Carta] was an expression of the law which the king and his judges and other officials were not permitted to ignore.”

imageThe opinion expressed in the slogan, ‘No taxation without representation,’ has been read into Chapter 12 [of the Charter], which says, ‘No scutage or aid shall be imposed in our kingdom except by the common council of the kingdom…”

If one had to choose a chapter from al the Magna Carta to express the spirit and the principal idea embodied in all the Charter, it would be Chapter 39 of the 1215 version: ‘No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, now will we go upon him, nor send upon him, except by the legal judgement of his peers or by the law of the land.’ …

In effect, each confirmation of the Charter became a solemn assurance to the realm that the king would act with a regard for eth welfare of all subjects.  It was an assurance, moreover, that the king would act according to established procedure: in short, the king, like all his subjects, was under the law.”

In 1258 the barons … went much further in their demands than the baronial faction that forced Magna Carta from King John … [insisting] upon an elective council of fifteen men, a standing council who would meet three times a year with another group of twelve elected barons. In these three annual “parliaments” [the word 'Parliament' came from the 'parley' or talks which the King had with larger groups of advisers] the twelve elected representatives of the commonality and the fifteen elected councillors were ‘to treat the wants of the king and his kingdom.’”

“[T]he principle of Magna Carta was [further] confirmed in 1298, 1299, 1300 and 1301.  And every confirmation  reinforced the view that the Great Charter of Liberties was part of the common law of England.”

The growth of the common law in the thirteenth century represents in large part the definition of established customs.  In the form of writs, judicial decisions, treatises, royal ordinances, and parliamentary statutes, the common law emerged into explicit written form and formal procedure… Controversies occasionally forced a definition of the law and frequently resulted in written statement on well-kept records…”

The basic elements in any civil action [in the courts of Angevin England to 1307 were these.] First, the aggrieved person must take the initiative… [he] must do more than grumble… Second, the court must act through appropriate officers to bring  [the accused] before the court to answer the charges of … the plaintiff. Next … the plaintiff and the defendant must be encouraged to formulate precisely the issues between them…  Then follows the trial … [in which] the  judge or judges apply the appropriate rules of law to the facts and reach a judgement… Finally, there must be the execution, or enforcement …
“The purpose of the verbal, combative procedure outlined here is the settlement of a dispute which might explode into violence if it were not channelled through a court [c.f. the continuing grievances and utu that plagued Maori inter-tribal life in later centuries].
“The law of medieval England was not much influenced by Christian doctrines of the duty of forgiveness and turning the other cheek. It assumed that a deliberate wrong would be resented … it assumed the desire for vengeance was natural and proper… [and from Anglo-Saxon times on, the system] was expected to quench vengeance and prevent a long chain of killing, woundings and injuries.”

In his coronation oath the medieval king assumed a three-fold responsibility: 1) the protection of the Church, 20 the preservation of the peace, and 3) the administration of justice.  Preservation of the peace was both a duty and a right of the king.”

The king in medieval England accepted a general responsibility to maintain the laws of the realm and to render the justice impartially to rich a poor alike… The sovereignty, or supremacy, of law was recognised not only in England but throughout the Latin Christendom during the Middle Ages.  The German scholar Fritz Kern has observed, ‘Not only the law of the realm but laws of property were considered laws which the king could not curtail on his own initiative alone.’ A political theory supporting absolute monarchy did not emerge in the Middle Ages…”

Blackstone in the eighteenth century makes the royal judges of the common-law courts the depositaries of the laws.  Presumably their long experience and studies enable them to determine the validity of general customs known throughout the realm, and their decisions consequently are the most authoritative evidence about customs included in the common law.  These decisions, having been recorded and preserved, are available for consultation in difficult cases… 
    “On all matters of general custom the royal judges assumed the power to recognise what was good custom … Blackstone provided in his Commentaries on the laws of England a clear account of tests which customs should meet before they were admitted to have the force of law… Above all, he makes clear that not all customs are good customs and that the courts will permit litigants to rely on customs only when those customs meet certain criteria such as antiquity and continuity.
    “Professor Theodore Plucknet reminds us [in 1949] that for Azo, the civilian jurist, ten or twenty years was ‘a long custom,’ thirty years a ‘very long’ custom, and forty years an ‘age-old’ custom.  But in any period good custom is spoken of as ancient.’”

“[In conclusion], it is important to note the persistence and force in the modern world of some ideas which men of the Middle Ages incorporated in the common law of England.
    “Foremost among these if the idea of the supremacy of law … This idea implies that there are limits to the power of ruling.  The rule of law was difficult to apply against medieval kings with absolutist policies … The rule of law is difficult to apply now in the face of modern ideas of sovereignty which admit no limitation on the power of ruling… What is required in the twentieth [and twenty-first] century is a much wider understanding of legal rights, how they have been gained, how they may be lost.
    “A second idea … touches … the doctrine of judicial precedents…  [Common law] demanded  justices learned in the law of the realm[[and decisions of prior courts]. In the Middle Ages common-law court decisions were recorded, and on special occasions the record was consulted, but for several centuries the common law lived more in the minds of its judges and practitioners than in plea rolls and reports.  The law of the Middle Ages was largely judge-made, and whenever it was changed by deliberate action of the king’s council or by Parliament, judges participated in the change.  It is an essential part of the common-law system that its principles are derived from decisions in actual cases in which, of course, judges play the principal part.
    “A third important legacy of the medieval law to the modern law is the writ system… English lawyers could afford the luxury of throwing away the old forms of action only after the principles within those forms had become embedded in the law [only to be thrown away all too often by subsequent Attorneys General].  After men have learned what constitutes a debt recoverable in the court [for example], a writ of Debt is unnecessary … Modern courts [too] now recognise a leaseholder is entitled to enjoy the full term of the lease and to recover the both the lease and damages if he is ejected from the leased property.  But the leaseholder’s remedies were not taken for granted in the Middle Ages. They were acquired slowly in the form of actions associated with writs.  The full catalogue of writs known as the Register of Writs was the framework of common law.  When in the present, a lawyer decides that his client has a good cause of action which the courts will recognise, he is drawing, more often that he may realise, on the medieval definition of that cause of action in one of the many form writs.”

The rule of law, the development of law by means of judicial precedents, the use of the jury to determine the material facts of the case, and the definition of numerous causes of action [based on right]—these form the principal and valuable legacy of the medieval law to the modern law.”

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