English Legal and Constitutional History

From 1066 to 1875

Henry 11

Established:

• General Eyre – administrative and judicial functions

• Courts of Assize – travelling courts

• “The Bench” – central Royal court at Westminster

Westminster Courts

• Court of Common Pleas: matters between ordinary litigants

• Court of Exchequer: specialised in disputes concerning the royal revenue

• Court of King’s Bench: specialised in matters concerning the King or touching on the royal interests

Re Hallett’s Estate; Knatchbull v Hallett (1880) 13ChD 696 at 710:

“…it must not be forgotten that the rules of the Courts of Equity are not, like the rules of Common Law, supposed to have been established from time immemorial. It is perfectly well known that they have been established from time to time – altered, improved, and refined from time to time…No doubt they were invented for the purpose of securing the better administration of justice, but they were still invented.”

Equitable maxims

• He who seeks equity must do equity

• He who comes to equity must come with clean hands

• Equity will not suffer a wrong to be without a remedy

• Equity follows the law

• He who is first in time takes precedence

• Where the equities are equal, the law prevails

• Equity assists the diligent, not the tardy

• Equity is equality

• Equity looks to the intent rather than to form

• Equity looks on that as done which ought to be done

• Equity imputes an intention to fulfil an obligation

• Equity acts in personam

19th Century reforms

• 1832: Uniformity of Process Act–Common form of writ for all legal

processes

• 1852: Common Law Procedure Act

Chancery Procedure Act–Simplified procedures

• 1873/1875: Judicature Acts

Judicature Acts

• Replaced the writ system with the statement of claim

• Merged three common law courts with Court of Chancery

• New Supreme Court of Judicature– High Court– Court of Appeal

Divisions of High Court

• Queen’s Bench Division

• Common Pleas Division

• Exchequer Division

• Chancery Division

• Probate, Divorce and Admiralty Division

Developments in NSW

• Supreme Court Act, 1970 (NSW)

Magna Carta

• Court of Common Pleas would remain at Westminster

• No one could be put on trial unless supported by credible witnesses

• King to appoint as judges and sheriffs only those who had a knowledge of the law

Magna Carta

• No freeman would be imprisoned or dispossessed of his property except by “lawful judgement of their peers or by the law of the land”

• Justice should not be sold, refused or delayed

• Freedom of movement

Reformation Parliament1529-1536

• The Act in Restraint of Appeals to Rome

• The Act of Supremacy

• Plenary power or Parliament

Divine Right of Kings

“Kings are not only God’s lieutenants on earth and sit upon God’s throne but even by God himself they are called gods…for that they exercise a manner of resemblance of divine power upon earth.”

James 1

Dr Bonham’s Case (1610) 8 Co Rep 107a at 118a:

“It appears in our books that in many cases the common law will control acts of Parliament and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such an act to be void.”

Charles 1

• Short Parliament

• Long Parliament– The Triennial Act 1641– Act to Continue the Existing Parliament 1641

Bill of Rights 1689

• Redesigned English monarchy

• James 11 “resigned”

• Monarch could not govern independently without parliamentary consent or approval

• No royal power to dispense with or suspend laws

• Annual Parliaments to control finances

Bill of Rights

• Taxation required parliamentary consent

• No standing army without parliamentary consent

• Established parliamentary privilege

• Regular parliaments

• Bail not to be excessive, excessive fines not to be imposed, cruel and unusual punishments not to be inflicted.

Act of Settlement 1701

• Prevents monarchs or their heirs from marrying Catholics

• Safeguarded judicial independence. Judges given security of income and tenure, and could only be removed by Parliament, if an accusation of bad behaviour was proved.