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73 Cards in this Set

  • Front
  • Back

Introduction

- Turner


- Hudson


- Bede


- Baker


- Royal Intervention

Turner

All original judicial branches can trace themselves back to the Curia Regis of the Saxon and Norman Kings

Hudson

Note that ascertaining historical evidence especially before the 16th century is difficult due to the largely oral culture of legal proceedings

Baker

Saxon codes were customary and not written, the only written elements were to apply to those who already knew what the law was. It did not seek to write down the law

Why was there royal intervention?

Courts were seen as a source of power, profit and public order. After the anarchy in the 12th century, a lot of land claims and disputes came about



Common Law Origins

- Turner


- Stubbs


- Chrimes


- Baker



Turner

All judicial branches can trace their origins back to the original Curia Regis

Stubbs

Argues that Henry II was the origin of the the KB

Chrimes

Notes that the origins of the KB only existed as a temporary measure to ease the workload of the exchequer, it was not intended to be a permanent institution.

Baker

The king's rule at this early time was however not universal, but his rule was unquestionable. Many parts of England still utilised the local courts for their disputes.

The Common Pleas

- Magna Carta


- Richardson


- Turner

Magna Carta

Following 1215 it was required for there to be a centralised court for the common pleas and situated in one place, stationary and not travelling.

Richardson

Henry II and Richard I absences in the Crusades was the result of the establishment of a permanent common pleas. Possibly because their lack of efforts to travel the country as a travelling court made it stationary.

Turner

The Common Pleas grew out of specialisation whilst the KB grew out of the royal seal.

Competition with the KB

- Baker


- Reasons for the KB


- Baker


- Klerman


- Baker


- Blatcher


- Klerman


- Milsom

Baker

Must not exaggerate the competition during this period, suggesting that the courts did not quarrel as much as others believe.



Reasons or the KB

The KB emerged following King John's motives to tackle a troublesome CP and essentially serve as a court to protect the king's interest and family

Baker

The CP however is responsible for shaping the common law as we see it. This was partly due to it having the earliest form of law reports pre-16th century.

Klerman

Competition was fuelled because litigants were free to choose which court they could bring a dispute in.

Baker

Therefore it was the general aim of the courts to satisfy the interests of the litigants and encourage them to bring their business to them. Arguably this created a pro-plaintiff bias



Blatcher

As a result of competitions, fictions began to develop as a form of innovation to allow more claims to be brought in their particular courts

Klerman

As the KB was a one man court this meant there was less arguments than within the three man CP. Plus it had more funds to innovate and develop cleaver new legal fictions



Milsom

Argues that the KB's growth in business and innovation did not hugely affect the CP who still had a monopoly over its jurisdiction in the plea rolls

Common Law Making

- Klerman


- KB Changes


- Klerman


- Milsom

Klerman

The courts had complete freedom to make the law as they saw fit. But this meant there was a lack of certainty and uniformity within the law.

KB Changes

By the 15th century its work had been largely centralised aided by an influx of Tudor litigation, development of bills, the rise of barristers and written proceedings.

Klerman

The CP monopoly and requirement of Serjeants meant that fees were very high. The KB had a more flexible, efficient and cheaper procedure that suited the public far better.

Baker

The CP feared these challenges to its business so resulted in sanctioning all legal fictions in order to end a century of competition

Fictions

- Baker


- Milsom


- Baker

Baker

The Middlesex bill was completely fictitious as the claimant was never in Middlesex to assert the jurisdiction.

Milsom

Fictions ended up taking a lot of business from the CP due to the CP's expense.

Baker

Also noted the ejectment fiction applied in land law cases. Using the fictitious names of John Doe and Richard Roe to enforce ejectment on parties.

The Exhequer

- Stradling v Morgan


- Wurzel

Stradling v Morgan

Case which recognised the roll of the Exchequer was largely a court of revenue and debt on behalf of the King

Wurzel

The Exchequer was a prompt service considering that it had to deal with the King's revenue and debt funds. It has it's own seal so therefore it's own jurisdiction to allow litigants to bring claims within its court. Its jurisdiction was however limited to just revenue related matters by 14th C.

Quo Minus

A legal fiction allowing the Exchequer jurisdiction over anyone's claims who directly or indirectly was a debtor to the king and was prevented from paying their debtor if a creditor to them was not paying.

Outcome of the Common Law

Klerman

Klerman

By the 17th century all jurisdictions of the courts were largely very similar. Full uniformity was reached by 1828

The Chancery

- Magna Carta


- Cheddar v Savage


- Onslowe's Case


- Prohibition del Roy


- Baker

Magna Carta

Courts could or judges could only deprive people of their liberty if achieved via due process

Cheddar v Savage

This case saw the expanse of the royal prerogative via the use of concillar courts such as the Chancery

Onslowe's Case

Judicial inclination to challenge particularly unfair legal proceedings such as denying the Star Chamber the jurisdiction to try perjury

Prohibition Del Roy

All judicial power is exercised in the name of the monarch, but Lord Coke held that the King could not determine legal disputes in person. The separation of powers required that the task be delegated to the King’s judges. This case reinforced the separation of powers between the executive and the courts.

Baker

The king was sworn to provide remedies within normal procedures if the common law was harsh of unfair

Chancellor

- Tucker


- Baker


- Operation


- Baker


- Tucker



Tucker

Administrative and judicial petitions made to the chancellor as a way of crown redress of particular legal wrongs. Richard III for example delegated petitioning to his judges

Baker

The common law was prone to certain failures so it was therefore the duty of the chancery to fulfil the law justly

Operation of the Chancery

Non-rigid proceedings that turned on conscience. Allowed the issuance of subpoenas or certorai orders.

Baker

Cases were not bound by precedent or strict rules and therefore could turn on their own specific facts

Tucker

by the 1550s, the court had established itself as a swift procedure and a form of appellate jurisdiction over the common law courts

Equity

- Bracton


- Bailey


- Jones


- Ellesemere


- Tucker


- Behrens


- Wolesley

Bracton

Defined equity as the uniformity of the law that turned on the acts of men

Bailey

Courts could initiate proceedings by subpoena to order litigants to court. It became a court of conscience.

Jones

Equity would enable the issuance of common law injunctions to combat the rigour of the law

Behrens

Chancery however slowly began being criticised for undermining the common law by using itself as an appeals jurisdiction against common law decisions

Wolesley

Known for putting down lawyers, making very arbitrary decisions and offending lawyers

Tensions

- Jones


- Russells Case


- Wriothsley


- Ellesmere


- Coke


-Ellesmere

Jones

Recognised that there was some evidence of harmony under Elizabeth I, however this was very dependent on the attitude of the Chancellor

Russells Case

An example of where the chancery crossed swords with the common law. Here an order of habeus corpus was issued by the chancery to release a prisoner convicted under the common law

Wriothsley

Removed from the chancery due to his abuses of the common law and due to a fear that he was attempting to introduce the civil law into the legal system

Ellesmere

Known for also antagonising common lawyers. Tensions reached all time high when he appointed the civil lawyer julius caesar to master of the rolls

Coke

Chief Justice of the King's Bench challenged the finality of the chancery and Ellesmere's use of the Chancery as an appellate court

Ellesmere

Had this fight resolved and James I removed coke asserting the dominance of the chancery over the common law.

Equity in the future

- Cook


- Baker


- Nottingham


- Kilnick


- Loban

Cook

Whilst not strictly in equity Cook was the solicitor general in the trial of Charles I for treason. He asserted that the law was above the king and he had no divine right to not be subject to it

Baker

The essence of equity was to become tied to rules and equity over time became subject to some standards

Nottingham

Famous judge who applied equity in many of his cases but stressed that it was still limited by some boundaries to make it principled.

Kilnick

However recognised that whilst equity was bounded by some limitations, Nottingham in some cases was partial to departing from his strict rule

Loban

By the 18th century, the chancery became expensive, slow, corrupt and full of jargon. It had got the better of itself and was renowned for its delayed processes due to the Master of the Rolls and clerks wishing to increase revenue

Reform

- Loban


- Judicature Act


- Maitand

Loban

One man courts of the KB and Chancery meant that reform was overall pretty slow.

Judicature Act 1875

By the 19th C the courts all had very similar jurisdictions and were very indistinguishable. KB primarily criminal matters, CP dealt with real property and Exchequer had dealt with revenue matters. All amalgamated by 1875 and shared the same jurisdiction and remedies by this point.

Maitland

Must also consider that equity was never in conflict with the law, it was not a stand alone concept