Foundations Of Law - Foundations of Law

Citation:

• Unreported judgment: name, year, court identifier, judgment number.

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What was the development of the Royal Courts and the Common Law through history- chapter 3?

• Anglo Saxons ruled. They left us with the writ, the sheriff, a court officer, the notion all are subject under the law and the notion of the King’s peace. Alfred the Great unified the Anglo Saxons into one kingdom. They had local law that did not apply to the whole country and customary law rather than written law.

• 1066: William of Normandy invaded England and became king, an absolute monarch with no limits.

  • The effects: The Normans introduced a feudal society. Landholding was mixed with lordship. The King owned all the land and granted it to those bellow him. In return, an obligation to the King was owed. It turned on the person directly above and bellow you.

  • William added laws in an ad hoc way. Henry I and Henry II developed the common law more.

  • There was trial by battle or ordeal or jury. Henry II made jury the normal standard of trial.

  • The King’s court was called the Curia Regis. They were advisers to the king, similar to the witanegemot of the Anglo Saxons. It later became the courts that operated in the King’s absence.

• 12^th century:

  • Henry II developed a system of sending judges in eyre to places at particular times. Judges went to see if taxes and fines had been paid and to hear disputes. The king’s justice was applied and consistency occurred because local courts were not only relied on

  • People started running away to hide so 5 judges stayed at Westminster to hear matters. The royal justice system was consistent, it had the same judges and consistent principles developed. The Court of Common Pleas was developed to hear land disputes. The Exchequer managed finances and heard disputes. The Chancery coordinated the departments.

• 1200s: Exchequer was divided into Exchequer of Receipt (took money) and the Exchequer of Pleas (summoned defendants through writs).

• 1215: Royal Courts that stayed in England= Exchequer (revenue, taxes), King’s Bench (followed the king) and the Court of Common Pleas (trespass and debt- had a monopoly on cases). On Eyre still occurred.

• The Church: A spiritual and temporal court (ecclesiastical courts) was established (went till 1857) where cannon law was applied.

  • Softer punishments were used and ordeal was abolished in 1215.

  • It provided for sanctuary and abjuration where a criminal could go to a church for 40 days before going to the trial or confessing. If you confessed you were hanged or could leave England. You were executed in the eyes of the law.

  • You could avoid capital punishment if you were sentenced under these courts.

• Trial by jury was based on the belief that God would ensure the innocent prevailed. 12 knights were available for royal courts. In other cases, 12 jury were chosen based on those who knew the matter and they went and investigated.

• Women who were married could not make a will, sue or be sued. The only protection was a dower giving her 1/3 of her husband’s possessions.

• Equity was a parallel system to the common law. The Lord Chancellor, the king’s chief administration officer, could make differing decisions from the royal courts. There were no precedents and it was entirely subjective. He was a member of clergy and trained under cannon law or the law of maxims (broad principles). He had many remedies and resolved the tension about unfairness while keeping the king’s authority in tact. It became the Court of Chancery. No decisions were recorded until the 18^th century. He protected wealthy women. Women could be recognised as having a separate estate set up by strict settlement but she was restricted in how she could use it.

• 1215: Magna Carta. King John was forced to sign it. Most classes of people were involved in obtaining the Magna Carta. It demonstrated that the king can be restrained and that the judgment of one’s peers should decide the law. It mainly dealt with land because it was a feudal society.

Page 48

Prisoners A-XX (inclusive) v NSW (1995)- A recent case that raised the issue of Magna Carta.

Facts:

• 50 prisoners brought an action seeking condoms in jail.

• The Department of Corrective Services refused by using their power under the Prisons Act (NSW)

Remedy sought:

• The prisoners want condoms available in prisons.

Prior Proceedings:

• The prisoners are appealing in the CA NSW.

Argument:

• The failure to supply or permit condoms is contravened under the chapter 29 of the Magna Carta- “no freeman shall be taken or imprisoned...but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will deny or defer to any man either justice or right”.

• Issacs J in Ex parte Walsh and Johnson said the chapter recognises that every man has an inherent individual right to his life...,individual rights must always yield to the necessities of the general welfare at the will of the state and the law of the land is the only mode by which the State can so declare its will.

• The department had breached a duty of care by not supplying condoms.

Outcome:

• Appeal dismissed with costs. Prisoners lost.

Legal reasoning:

• Sheller JA argued that the Magna Carta does not provide a statutory basis in this case. It cannot be read like a piece of contemporary legislation. It is hard to see the relevance to this case.

Ratio decidendi:

• The Magna Carta can not be read like a piece of contemporary legislation.

The Idea of Law in the Civil War and Glorious Revolution- chapter 5

The King v the Parliament v the courts: