THE ENGLISH LAW SYSTEM
Law, in the widest sense, means a rule to which actions should conform, the object of which is to enforce certain standards of behaviour among citizens in the interests of peace and good order. The laws of nations are rules of conduct imposed by a state upon its members and enforced by its courts. Such rules of conduct constitute the law of the land (or 'Municipal Law'). There is not necessarily a correlation between law and morality, the crucial difference between rules of law and rules of morality are ones conscience and respect for God's high moral code.
Roman Law
In most parts of Europe, and in many other parts of the world, laws are now derived from the ancient laws of the Roman Empire, the English law system, has assimilated Roman law and has developed by means of judicial precedent, ancient customs, and enacted laws. The Common law is said to be ' unwritten law ' because no complete codification has ever been made, so that today it may be necessary for a lawyer with a particular case to consult many statutes, and books of judgments to ascertain the principles of common law. The modern law of property, contracts, torts and crimes is all based on ancient common law, though legislation has, now of course, added considerably to most of these.
Anglo-Saxon
Anglo-Saxon laws were against stealing, or killing someone, it was the custom, and, therefore, the law, that men served the king when danger threatened and that each village conducted its affairs in a certain way. England was divided into shires and each shire was made up of several large districts called hundreds. Each shire and hundred had its own court, which met, perhaps, four times a year. These courts were attended by the more important people of the district and not only tried law-breakers, but also settled disputes and looked after the business of the town's and villages.
It was the duty of each village to keep its inhabitants in order, to do so, families were bound together in groups
called tithings the law protected
someone against being accused wrongfully. If a member misbehaved and was not brought to justice, the other members
must pay a fine. If a person was killed, the man or woman who caused his death must pay wergild, or man-money,
to his family. You can imagine how anxious villagers would be to bring a wrongdoer to justice.
The whole village would turn out to chase him. This was known as the "hue and cry . If a man is accused before the hundred court of stealing, he would have to produce "oath-helpers," men who would swear solemnly that he was innocent. If he could not do so, the court would order him to be put to the "ordeal" the prisoner was made to swear a long and very solemn oath that he was innocent. Then he would swallow a hard crumb of bread. If he stammered or coughed, it was a sign that he was guilty. Or the accused would have had his hand plunged into boiling water or had to grasp a piece of red-hot iron. The hand was then bound up and, if it healed in a healthy manner, it was thought to be a sign from God that the accused was innocent. This type of method of trying wrongdoers was to be continued by the Normans.
Feudal System
William I. dispute over the ownership of England ended with the Battle of Hastings. In accordance with medieval ideas, he established the feudal system of land tenure, under which all persons who possessed land did so merely as tenants or sub-tenants of the king; and established a strong central government and a national judicial system.
Land belonged absolutely to the Crown, all persons holding land did so merely as tenants (' feudatories ') of the Crown; tenants rendered services for their occupation to the Crown, by providing and equipping soldiers (from c.1166, 'scutage' money payments were made); Holding land directly from the king were the tenants in chief (' tenants in capite ') and comprised most of the lords and barons, who constituted the King's Grand Council (Curia Regis), which was the precursor both of the king's courts and of Parliament; sub-tenants rendered similar feudal services to their immediate landlords ('mesne' lords), e.g. tilling the landlord's fields; The villeins or serfs were the lowest class who were tied to the land on which they worked and could be sold with it, they could not marry without their lord's consent; and rendered service to their lord by tilling fields, keeping cattle, providing for their lord's kitchen.
Landlords bitterly resisted the expansion of the common law; their concern is apparent in Magna Carta. The Curia Regis (King's Grand Council) originally had judicial as well as governmental functions, but, during the Middle Ages, the judicial powers were gradually deputed to various courts: Shire or county courts, and hundred or parish courts, the feudal landlords held baronial courts and manorial courts for their tenants. Ecclesiastical courts, dealt with the discipline of the clergy, matrimonial and testamentary matters.
Henry II
The barons had become very powerful. Henry II ( 1154 - 8 ) was determined to be master of his kingdom, he made a law, or Assize, that people who wished could have their disputes settled or be tried in the king's court instead of in the local court. Each year he sent royal judges to the principal towns to deal with such cases.
The shire and hundred courts lost prominence to the king's courts, it was also decided to end trial by ordeal instead, men, were sworn to tell the truth, a jury listened to the trial and decided whether or not the accused was guilty. This is called " trial by jury." Nowadays almost any man or woman between certain ages can be summoned to serve on a jury.
If a robbery or theft was committed, it was the duty of everyone in the district to join in the "hue and cry", until he went into the next district. Edward I., however, found that the districts were apt to neglect this duty; so he ordered that each district was to be answerable for any theft or damage done in it unless the criminal was caught within forty days. Edward I. also laid down certain rules to prevent crime. For instance, he ordered that in highways leading from one town to another "no dyke, tree nor bush whereby a man may lurk to do hurt" should be allowed within 200 feet of the road.
Then he ordered that the town gates were to be closed from sunset to sunrise, and during that time twelve men in every town and four to six in every village were to keep watch. If a stranger tried to pass by them he was to be kept till morning, when, if there was no suspicion against him, he might go free.
Edward I
In a sense Edward I was founder of English law as he was the founder of the English Parliament, since his is the earliest reign. to which our law looks back. Statutes and decisions of his time are still "good law", unless they have since been set aside. And his reign was marked by great legislative and judicial activity. Edward also organized the Judges who went round "on the assize," and it was settled that the assizes should be held three times a year.
Edward I. was the first king to appoint Justices of the Peace, though they did not become important till the reign of his grandson, Edward III. Towards the end of the Middle Ages the Justices of the Peace attended to the running of their town or village in all parts of the country in course they settled wages and looked after the roads and the poor. The knights or country gentlemen who were made Justices of the Peace tried persons for smaller crimes They acted as judges of unimportant cases, in the Petty (or small) Sessions they punished various offences and handed on important ones to the King's Justices or judges on Assize..
In the Court of Quarter Sessions, held four times a year, they tried more serious offences. For some 600 years the Justices of the Peace arrested, examined, and punished disturbers of the peace and became the King's "maids of all work," and they did all this without pay.
Some of the work now done by County and District and Parish Councils was done by the Justices of the Peace almost till the end of the nineteenth century. Nowadays the Justices of the Peace, or magistrates, still hold their courts, which have also been called the Police Courts.
Edward I. continued the work of Henry I. and Henry II., in his reign the Law Courts were rearranged.
The Courts of Assize (e.g. Assizes of Clarendon and Northampton) dealt mainly with criminal matters, they toured the country and the itinerant judges derived their authority from various Royal commissions, i.e. oyer and terminer (to hear and determine more serious criminal questions), general gaol delivery (a commission to clear the prisons of persons awaiting trial), and Trailbaston (a commission to deal with abuses of justice).
(This was the beginning of the Assizes, which are nowadays held in important towns by the Queen's judges to try important cases.) The king, besides being lord of all the land, was also the chief judge, the people still had the right to appeal for justice to the king himself Those who believed that they had grievances which only the king himself could put right would journey to his court or send their complaints there for consideration.
The Court of King's Bench heard cases in which the King was concerned -e.g., it heard complaints against royal officials or
breach of the King's peace. In the thirteenth century the Court of
King's Bench separated from the Curia Regis it had wide criminal jurisdiction, mainly appellate, and dealt with
civil actions, particularly trespass. This civil jurisdiction was gradually extended to cover all kinds of civil
action. The Court of Common Pleas also separated
from the Curia Regis formerly one of the three superior courts of common law in England, presided over by, lord
chief-justice and five (at an earlier period four) puisné judges. It tried cases between subjects, dealing
with all civil actions between subjects, particularly with actions relating to land in other words, matters that
did not touch the king's own rights, or peace, having cognizance of all civil causes, real, personal, or mixed,
as well by original writ as by removal from the inferior courts; In
1881 it was merged in the queen's bench division of the High Court of Justice. It had jurisdiction in England and
Wales over all 'common pleas'. i.e. civil suits between subjects .
The Court of the Exchequer heard
cases about the royal revenue, it was the first branch of the Curia
Regis to establish itself as a separate court. It dealt mainly with revenue matters, but also had a restricted
civil jurisdiction. The Court of Exchequer Chamber
dealt with appeals due to error from the other common law courts. The last court of this name was abolished in
the nineteenth century, when the present appellate system was established
From the thirteenth century all appeals against decisions of the Royal judges were made direct to the king, who was regarded as the fountain of justice and was the head of the judicial system. Later, pressure forced the kings to pass these appeals to the principal Royal official, the Lord Chancellor. The Lord Chancellor was the king's chief secretary; and his chaplain, or, 'keeper of the king's conscience'. As a priest, he would decide cases on the basis of morality or natural justice (i.e. equity) rather than in accordance with narrow and technical rules of law. Equity, in its earliest or most primitive sense, means fairness or natural justice.
This led the Court of Chancery to offer remedies of its own to supplement the common law, such as specific performance and the injunction, and also to recognise rights that were unrecognised by the common law. The restrictions imposed on the expansion of common law by the Provisions of Oxford 1258 and the Statute of Westminster II. (1285) caused equity to increase in importance and the Court of Chancery and common law courts began to conflict
From the middle of the fifteenth century the common law began to secure a hold over the further development of mercantile law and the influence of merchants in the settlement of their disputes declined. A statute of 1477 (17 Edward IV, c.2.) restricted the jurisdiction of the local courts and (courts of pie powder or pie poudre) defendants were thus enabled to escape the local jurisdiction by removing themselves outside the borough limits. This, coupled with the possibility of appeal to the common law courts, and the expense that that implied, resulted in a decline in the popularity of these courts. By the seventeenth century, the local courts were in a condition of terminal decline.
The popularity of equity led to harmful competition with the common law courts, disputes become increasingly bitter during the latter part of the sixteenth century Chancery and common law judges were sometimes issuing contradictory verdicts.
James I (1603-25) forced Lord Chancellor Ellesmere and the head of the common law system, Lord Chief Justice Coke, to present the dispute in the Earl of Oxford's Case (1615), to the Attorney-General, Sir Francis Bacon, to arbitrate. On Bacon's recommendation, James I. then ordered that, in such cases of conflict with common law, equity should prevail. The King's ruling was never completely accepted by the common law courts .
The king at this time appointed judges and also dismissed them if they did not please him, both James I and Charles I quarrelled with Parliament. One of the reasons for the quarrel was that the king could appoint judges who would take his side and refuse to enforce laws made by Parliament. In the end Parliament won and the king could no longer dismiss judges who disobeyed him. By the seventeenth century, the fluctuations and uncertainty of equity had become a major reproach and John Selden, an eminent jurist, summed up the position by saying that Equity varies with the length of the Chancellor's foot'. In order to achieve uniformity and stifle criticism, Lord Nottingham (Lord Chancellor 1673-82), sometimes called the ' father of modern equity ' attempted to alter the vague rules of equity to produce a formal system. This work was carried on by his successors, notably Lord Hardwicke (Lord Chancellor 1736-56) Equity, comprises of principles laid down in the court of Chancery before 1873 and is intended to supplement the common law by providing new rights and new remedies, and by softening the common law where this was too rigid and inflexible
Each year law enforcers in the olden days were chosen from the inhabitants to be a constable. His job was to see that law and order were kept and he could call on anyone to help him. By the time of Charles II the system of appointing a watchman to patrol the London streets at night had become well established. These "Charlie's," as they were called (after the king), carried a staff, a lantern and a rattle to raise the alarm. They cried out - " the time of each hour and all's well."
The Police
In 1751 the Bow Street Patrol, (Bow Street Runners) called after the magistrates court in Bow Street, patrolled the streets of London. In 1829 Robert Peel set up the Metropolitan Police Force. These "Bobbies" or "Peelers," as they were called, wore black top-hats, blue coats and grey trousers and, in winter, thick brown greatcoats. Their only weapon was a wooden truncheon. So successful were they, that police forces were set up in every part of the country.
In the nineteenth century Parliament made extensive reforms to the judicial system and the administration of the law, culminating in the passing of the Judicature Acts. These ended many anachronisms in the common law and merged its administration with that of the system, of equity. In the mid nineteenth century a new type of court was set up to deal with disputes, the County Courts, to which people are summoned for not paying bills, failing to fulfil agreements they have made with other people, and so forth.
The County Courts Act 1888 enabled the lord of any hundred, honour, manor, or liberty, having any court in right there of in which debts or demands might be recovered, to surrender to the Crown the right of holding such court for any such purpose, and provided that such surrender should not be deemed to imply the surrender or loss of any other franchise incident to the lordship.
The same Act enabled the Crown, by order in council, to exclude from the jurisdiction of a court of local jurisdiction causes of which a county court had cognisance, if a petition, praying for such order, were presented to the Crown by the council of any city or borough, or a majority of the rate payers of any parish, within which the local court was established. The jurisdiction was finally abolished in 1971.
Nowadays every county and every town of any size has its own police station to enforce good order and the Law
