Common law & equity

Common law & equity

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Common law & equity

  • Before the Norman conquest of England the country was loosely united under the crown.
  • What constituted as an offence in one shire might not be an offence in another.
  • The shire court/moot was presided over by the bishop and also attending would be the free men of the shire and all those entitled to attend the hundred courts.
  • The hundred courts or Moot were presided over by the hundredmen and twelve senior thanes.
  • The final decision was decided by God.
  • Method of Proof - The accused had to repeat a long complicated oath word perfect. An oath helper would also recite and oath that they believed the accused to be of good character and not likely to have commited the crime, known as the wager of law.
  • The more oath helpers the more likely they would have their innocence proved.
  • If the accused couldn't get any oath helpers then they would be put through the ordeal. They would have their hand plunged into hot water and then their burns bandaged up. After a period of time the bandages would be removed and if the burn had healed they were innocent if not they would be mutilated.
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Events following the Norman conquest

  • The introduction of Feudalism is really a method of government which includes the administration of justice and was based on land holding.
  • William confiscated all land and distributed it between noblemen and supporters, they were known as tenants of the crown.
  • In return they swore allegiance and had to do feudral dues to the crown and its government, such as equipping soldiers.
  • Lords that held land of the kings were allowed to set up fedural courts.
  • Shire court - deals with all matters except those concerning land. But eventually the royal judge took over from the sheriff.
  • Hundred court - It Diminished its importance because it could no longer deal with disputes concerning land.
  • Manorial court -These were held by the lords of the manor and were concerned with land disputes. When Feudalism faded, the Manorial Court declined.
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Henry II (1154 - 1189)

  • Henry didn't abolish the jurisdiction of these local courts he merely undermined their authority.He did this by using the royal writ and the officer he employed to do the work was the sheriff.
  • A writ was an order signed by the king, commanding something to be done, if you disobeyed the writ there were grave consequences.
  • The writ praecipe - a command from the king to the tenant in chief commanding him to appear before the king. Henry II served it to the local sheriff to summon the lord of the manor before him to deal with disputes concerning land. This took the disputes out of the manorial courtwhich angered the Barons, so it was abolished by the Magna Carta 1215
  • The Writ of rights - if a person couldn't obtain justice locally they would complain to the king who would order the person reponsible for the administration of justice to do right in connection with the complaint.
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The circuit System

The Circuit System

  • Henry II divided the county into ciruits and sent a royal judge to go at regular intervals into the countries.
  • These judges would sit in the shire court and took over from the Sheriff.
  • It was these judges that moulded the various customs into a system.
  • They adopted the best of the customs they found throughout the country and applied them in a uniform matter to form the basis of common law.
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The Writ system

  • With the growth in power of the royal courts, that of the local courts diminished. To begin an action in a royal court the plaintiff needed a written command from the lord chancellor in the kings name, ordering the defendant to appear in court and show cause why the plaintiff should not be given the relief he sought.
  • At first there was no limit to the varieties of Writs which the royal chancellery would issue. As the work of the royal courts grew so did the demand for writs. The choice of Writ determind the whole procedure at the trial. If the wrong writ was chosen the litigant failed.
  • If you sought a Writ the clerks would first consult the register to see if there was a form of action on which the complaint could be based. If so they copied it merely altering the factual details. If no Writ fitted then a new one had to be drawn up.
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The Writ system

  • The barons were jealous at the growth of the royal courts and the decline of their own Feudal courts which forced Henry III to forbid the issue of further new varieties of Writs.
  • Enacting the Provisions of Oxford Case 1258 which prevented the issue of new Writs.
  • Common law then became rigid and fixed. The statute of Westminster II allowed further development of common law but it was too late.
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