Evolution of the Common Law - Why did it come about? 1. Geography 2. History 3. Democratic - contrast with Civil Law The Normans Three Major Accomplishments 1. Doomsday Book (census) 2. Feudal system 3. Curia Regis a) Magnum Concilium b) Executive council - established a strong central governmeent - laid the foundation for the legal sysstem Henry II & the Plantagenets Achievements: 1. Produced the First Book of English Law 2. Expanded the role of the courts in three areas - itinerant judges brought the law to the people a) criminal law - differentiated between serious & lesser offences; serious offences were prosecuted by the Crown - trial by jury: grand & petty juries brought-in - brought the business of trials from God to man b) property law - brought in a system of writs - property disputes involved a writ of right - writ of praecipe issued when land belonged directly to the King - writ of pone allowed a dispute to be brought-up from seigniorial courts to the Curia Regis, for review - also brought in assizes: - grand assize avoided trial by battle - petty or possessory assizes dealt with the issue of possession quickly, while one waited for a grand assize c) ecclesiastical law - Constitution of Clarendon - benefit of clergy King John & The Magna Carta (1215) - first attempt to incorporate a constiitutional government into a legal government - established that the law was supreme,, and that everyone was under the law, even the King Five Main Points 1. Writ of praecipe could not be issued to deprive a lord of his court 2. Court of Common Pleas should remain in Westminster 3. Itinerant judges should be on a regular schedule; visit the countryside 4 times a year 4. No free man should be taken/imprisoned or deprived of his land except by lawful judgment of his peers. Freemen must be tried by freemen, not just commoners. Came to mean that lords had to be tried in the House of Lords. 5. Certain matters (especially financial ones) had to have the approval of the full Curia Regis ('No taxation without representation!') Contributions of the Magna Carta (derived from its interpretation, not from its initial meaning or background) - trial by jury - representative government - supremacy of the law Make-up of the Curia Regis - Parliament (Commons) - Council (Cabinet) - Courts - Exchequer (taxes/debt) - Common Pleas (civil) - King's Bench (criminal) - High Court of Parliament (House of Lords; heard appeals) Prerogative Writs: - used to centralise justice for the Kiing's Court 1. Habeas Corpus - released those who were unlawfully detained 2. Prohibition - limited the jurisdiction of the lower courts; prohibited them from hearing cases that should be heard by the King's Bench 3. Mandamus - opposite of prohibition; forced a lower official to do his job 4. Certiorari - 'to make more certain'; allowed for appeals to a higher court 5. Quo Warranto - 'by what authority?'; used to challenge the authority of a person in a lower eschelon Forms of Action 1. Real - recover the thing itself a) writ of right - recovered ownership b) possessory assizes - recovered possession only 2. Personal - recover damages (equivalent to the thing that was lost) a) debt b) detinue c) covenant d) trespass 3. Mixed - recover both the thing & for damage suffered - what are they? - what are writs? - who issues them? - Provisions of Oxford, 1258 - Statute of Westminster, 1285 Conciliar Courts - Chancery i. Latin: issued writs for the common law ii. English: became the Chancery Court - Chancery was imbued with morality - also under the King; did not come to destroy the common law but to fulfil & complement it - only developed the civil law - Star Chamber - created at the end of the War of the Roses (Civil War), 1485 - Tudor period - developed criminal & quasi-criminal offences - did not use trial by jury - Privy Council - only had appellate jurisdiction - used to hear cases from foreign colonies - NOT THE SAME AS THE HOUSE OF LORDS Three Major Reform Acts: - Parliament became supreme; won-out ovver the Crown 1. Bill of Rights, 1689 - guaranteed Parliamentary supremacy; Monarch could not dispense with Parliament's laws - free elections - free speech 2. Triennial Act, 1694 - Parliament must be called every three years; could not last longer than three years 3. Act of Settlement, 1700 - judges were not serving at the King's pleasure, but for life - confirmed judicial independence Jeremy Bentham & His Reforms - his philosophy: utilitarian; law shoould strive for the greatest good for the greatest number 1. Legislative Reform - very 'laissez-faire' Three Legislative Reform Acts - slowly expanded the franchise i. Reform Act of 1832 - upper class now allowed to vote (not just aristocracy) ii. Reform Act of 1867 - middle class now allowed to vote iii. Reform Act of 1884 - near-universal franchise (vote based on citizenship, not property-ownership) 2. Judicial Reform - Uniformity of Process Act, 1832 - abolished the forms of action - Civil Procedure Act - abolished wager of law - Wills Act, 1837 - allowed people to make wills - JCPC formed - County Courts Act, 1846 - like small-claims court; limited jurisdiction - Common Law Procedure Acts - common law could now use equitable principles/remedies - began the fusion of common law & equity - Chancery Amendment Act, 1858 - allowed Chancery Court to give common law remedies - another step in their fusion - Divorce Act, 1857 - allowed the courts to grant divorces, instead of by act of Parliament - Joint Stocks Company Acts, 1856-'62 - allowed companies to join together for limited purposes - Judicature Acts, 1873-1875 - created the Supreme Court of Judicature (note its make-up) - this was the climax of the fusion movement 3. Social Reform - Factory Acts, 1833 - Freedom of Slavery Acts, 1833 - Poor Law Act, 1834 - civil marriages allowed, 1835 - Public Health Act, 1848 EQUITY - 1615: supremacy of equity establisheed - 18th c.: Golden Age of Equity Chancellors Across the Centuries - Nottingham was the Father of English Equity; Hardwicke settled its principles & Eldon hammered out the details 1. Nottingham (17th c.) - wanted equity to be more defined & ceertain - limited its application to certain arreas of the law a) trusts b) mortgages c) remedies d) married women's separate estates - equity should still be governed by coonscience - the public conscience/public policy 2. Hardwicke (18th c.) Two Great Equitable Maxims which Hardwicke Propounded: a) Equity follows the law - equity was not meant to invent new concepts, but to follow the existing law - equity was dependent upon the common law; could not stand on its own b) equity acts against the person (his conscience) - equity acts to stop you from doing something (injunction) or to make you do something (specific performance) 3. Eldon (19th c.) - an arch-conservative; wanted to pull equity together & make it stand on its own (wanted to make it a complete system) The Judicature Acts 1. Fused equity & the common law 2. Made equity supreme in cases of conflict between the two - equity & common law can now interminggle Substance of Equity - describe how the system of equity funnctions and how it is different from common law - many different maxims, for example: i. Equity Acts Against the Person ii. Equity Follows the Law iii. Equitable Remedies are Discretionary iv. He Who Seeks Equity Must Do Equity v. He Who Comes to Equity Must Come with Clean Hands vi. Equity Aids the Vigilant, not the Indolent (Delay Defeats Equity) vii. Equity Looks to Intent Rather than to Form viii. Equity Regards as Done that which Ought to be Done ix. Equity Will Not Suffer a Wrong to be Without a Remedy - however, "If you did not get equity yyesterday, you will not get equity today." How Equity Applies Today: - in Criminal law: not much equity - in Torts: equitable remedies are usedd - in Contract: equitable remedies are uused; as well, some equitable doctrines are applied (undue influence, unconscionability, fraudulent misrepresentation) - in property: mostly in real property;; two biggest areas - trusts & mortgages; remedies of equity are also used SUBSTANTIVE LAW Contracts - grew out of trespass, in like case - Humber Ferry Boat case - initially based on damage done, not on agreement made - slow shift from tort to contract - assumpsit ('he undertook') - misfeasance (1400s) - semi-nonfeasance - nonfeasance (1500s) - competition between debt & assumpsit:: - battle in Exchequer Chamber - Slade's Case, 1602 a) executory contracts would be enforced (no need to prove damage) b) assumpsit could be implied - implied assumpsit/executory contractss (1600s) - quasi-contract/restitution/unjust enrrichment (1700s) How do we differentiate between social agreements & legally-enforceable ones? - consideration - Holmes theory - Aimes theory - Salmon-Barbour theory - Edwards' theory - past consideration is no consideratioon (sufficient but not adequate) - role of equitable estoppel Torts - contrast contract vs. torts - contrast torts with criminal law Derivation of Modern Tort Law a. detinue b. trespass - land - goods - person c. Star Chamber - conspiracy - libel d. actions on the case - main tort: negligence Negligence a. A tort in its own right - Donoghue v. Stevenson Requires Proof of 3 Things: 1. duty of care - examine the origins of the duty of care 2. breach of that duty (standard of care) 3. damage resultant b. A mental element in other torts i. nuisance ii. control of dangerous things iii. assumpsit iv. bailment Nuisance Two Sources: 1. Petty Assizes of Nuisance 2. Actions on the Case Must Prove: 1. Damage 2. Unreasonableness (un-neighbourly conduct) NO DUTY OF CARE! Defamation Two Kinds: 1. Libel (written) - begun in Star Chamber - did not have to prove special damages, as it did not arise out of an action on the case 2. Slander (spoken) - initially heard by church courts (Circumspecte Agatis, 1285) - when innocent people sued the Grand Jury, slander actions were totally disallowed (1327) - slowly crept in through actions on the case (therefore, you had to prove special damages): Limited Application: 1. Needed to prove special damages, because it arose from an action on the case. 2. Allegation of a specific criminal offence (ex. Holt. v. Astrigg (1607)) 3. Imputation of unfitness for office or trade (specifically, as against lawyers) 4. Imputation of contagious disease (i.e. the plague) Defences 1. Truth 2. Privilege a) absolute privilege b) qualified privilege 3. Fair Comment 4. Apology (only a partial defence) - defamation in Manitoba Conversion/Trover - must prove more than mere negligence (must be a commission) - does not require proof of damages - grew to replace detinue, because of iits improved procedure - developed from actions on the case & a legal fiction - compare conversion vs. nuisance - conversion is denial of title, whereas nuisance is interference with possession Fraud or Deceit ex. Derry v. Peek - leading case - statements made wilfully falsely or rrecklessly falsely, not just carelessly falsely - mere negligence is not fraud - Innocent misrepresentation -> Negligent misrepresentation -> Fraudulent misrepresentation - No contract required! Questions: - What was the significance of 'peine ffort et dure'? I don't think I quite get it.