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1.
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Sir John Fyneux, ?1441–1525, JCP, 1494–5, CJKB, 1495–1525
Sir Edward Coke, 1552–1634, CJCP 1606–13, CJKB, 1613–16
Sir Matthew Hale, 1609–1676, CB 1660–71, CJKB, 1671–76
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2.
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Themes to add to what we did last section:
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a.
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ancient constitution, fundamental law, divine right of kings, the feudal
law
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b.
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court vs. countryside
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3.
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The common law in trouble
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a.
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Struggle among the c.l. courts
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i.
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c.17 of Magna Carta, The Marshall of Marshalsea, debt by bill rather
than by writ, bills of Middlesex, latitats, fictitious bills of Middlesex
(16th century)
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ii.
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The expansion of case under Fyneux, assumpsit for non-feasance (c 1500),
assumpsit for non-payment (c 1530), trover and conversion (1530’s),
ejectment (also under Fyneux), defamation
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iii.
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The final development in the Restoration after stat. of 13 Car. 2 (sess.
2), c. 2 (1661), denies special bail where the c/a is fictitious, KB then
amends the latitat by using the ac etiam clause, which avoids the
stat. Sir Francis North CJCP then extends latitat to CP with the
approval of Nottingham C
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iv.
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The development of the Exchequer—quominus—17th
century
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b.
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Reform of procedure
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i.
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Statute of Jeofails (1540) and the rise of the requirement of formal
demurrer
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ii.
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Motions in banc and various ways of getting records of what happened in
the county—best considered below under review
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iii.
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Decline of Law French, Latin and court hand—1731
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iv.
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Double pleading
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v.
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Special pleading: Stephen and the pleading rules of 1834—>the Common
law procedure act of 1852
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c.
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Review of decisions—change in the nature of the trial
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i.
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Proceedings in error, courts of error (CP for most local courts, KB for
local courts of record and CP, Council Ch for Exch and later Ex Ch for KB),
the development of the appeal (19th c)
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ii.
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The rule nisi, motions in
arrest of judgment, judgment n.o.v., new trial, reservation of points by
judges
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iii.
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Review of chancery (rise of Lords 1675), the privy council (America),
the courts of appeal and the house of lords (19th c)
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iv.
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The prerogative writs, prohibition, quo
warranto, habeas corpus, mandamus, certiorari (largely criminal), declarations and applications
(19th c), administrative law [need more detail]
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d.
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Legal literature—reports and abridgements
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4.
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Slade’s Case as indicating
many of these developments
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5.
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Competition with the Chancery. Until the sixteenth century there is no
indication that the common lawyers are at all concerned about it. The
Coke-Ellesmere debate is more personalities than anything else. The real
developments are the 16th century settlement.
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6.
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Competition from other courts. Other conciliar courts:
Star Chamber (records start 1540, abolished 1641)
Requests (records start 1493, not abolished 1641 but dies out to be
replaced by urban courts of Requests)
Council of the North, Wales (basically 16th c, go into disuse during the
Interregnum, brief revival of Wales during the Restoration)
Admiralty (?14th c., reorganized in 16th c. never abolished but was the
chief butt of anti-civilianism)
Court of the Constable and Marshall, Marshall’s Court (last met 1955)
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7.
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The Reformation and the Ecclesiastical Courts. High Commission
(criminal) and the High Court of Delegates. The former died in 1640’s, never
revived. The latter still exists but much reduced because of the 1857
transfer of jurisdiction to Probate, Divorce and Admiralty Division of High
Court.
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8.
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Law making and law reform
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a.
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The notion of the immutable common law—Maine’s theory of fiction, equity
and legislation
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b.
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Case law and precedent
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c.
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Fictions
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d.
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Equity and legal change—uses, married women’s property, some commercial
advances that antedated statute, matrimonial home
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e.
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Legislation—legislation and adjudication combined, the statute rolls
begin 1299, parliament rolls 1290—the work of the Reformation Parliament,
the High Court idea in the 17th century
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f.
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Interpretation of statutes, Dr.
Bonham’s Case, the ultimate loss even of the equity of the statute
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g.
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Law reform—civil war and interregnum—1641 Star Chamber—1645 military
tenures—1650 Latin and Law French—the Hale Comm’n in 1652: simplification
of process and pleading, small claims, abolish imprisonment for debt, civil
marriage, land registration, the run of scary criminal statutes, almost all
reversed in 1660. Simplification of process continues piecemeal, small
claims do get established in the city courts of requests, imprisonment for
debt not abolished until 19th c., land registration doesn’t come until
1925, civil marriage not until 19th c. (though Lord Hardwicke’s Act is
1753).
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h.
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Codification—the Digest movement, Bacon, Bentham, etc.
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9.
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Why did it happen?
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a.
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Politics.
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b.
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Other explanations.
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