LAWS1201 Study Guide - Midterm Guide: Ship Money, The Foundations, New South Wales Act 1823
Module 1: The Roots of English Law
Timeline
1066: Norman Conquest of England, a seminal event in the development of the English Common Law
12th century: appointment of Justices In Eyre
1215: Magna Carta
1295: The model parliament
1414: no new statutes should be made by the Crown without the formal assent of the Commons
1607: Case Prohibitions del Roy (1607) the judges determined it inappropriate for the King to be involved with the common law
courts.
1610: Dr Bonham’s case
1611: Case of Proclamations the king could not create new crimes by royal proclamation
1689: Bill of Rights – an act of parliament settling the basis on which William and Mary took the throne, including that taxation
could be levied only with consent of the parliament
1701: Act of Settlement – a key step in the constitutional settlement which, among other things, provided judges security of tenure
1832: The Uniformity of Process Act 1832 simplified the common law court procedures allowing a common and general form of
writ for all common law actions
1873/75: The Judicature Acts of 1873 and 1875
Glossary
The Crown:
Feudalism: a strongly hierarchical system of social and political organisation based upon land ownership that was dominant in
medieval Europe including the British Isles.
Stare decisis et non quieta movere: to stand by decisions and not disturb the undisturbed
Justices In Eyre: itinerant justices; travelling justices
Writ: a written command from the monarch that something be done
Legal fictions: the legal acceptance of a fabricated version of facts so as to extend the reach of existing law to cover a novel
situation
Cause of action: the essential facts that must be proven to ground a legal claim for redress
Equity: a body of law which, in opposition to the more rigid and formal common law, was applied flexibly according to notions of
fairness
Jurisdiction:
Magna Carta: The ‘Great Charter’, which King John was forced to sign in 1215 by nobles, restricted the king’s power in
numerous respects, including that his free subjects would not be imprisoned or dispossessed of property except by the proper
operation of the law. This was an early statement of the rule of law.
Reformation: European movements in the 16th and 17th centuries in which Protestant churches were established, splitting from the
older Roman Catholic Church
Rule of Law: a central constitutional principle imposing principled limits on the government’s power. the government is subject to
the law and cannot operate in an arbitrary fashion
Separation of powers: an important constitutional principle which avoids the concentration of government power by dividing it up
between the three arms of government, the legislature, the executive and the judiciary
Why study English and Australian legal history? [LDL para 2.2]
• The origin of terminology
• Institutions of power such as the Crown, the courts and the parliament
• The relationship between these institutions today (and recognition of indigenous Australians)
Introduction to the Roots of English Law [LDL para 2.3]
• The invading Duke of Normandy did not impose the French legal system on England.
• This preserved the pre-existing Anglo-Saxon legal system that subsequently developed into the common law legal
system as distinct from a continental 'civil law' system.
• Problem with pre-Conquest legal system: lack of sophistication and commonality
Feudalism [LDL 2.4]
• The Norman Kings retained a feudal system further entrenching a system of land tenure stemming from the grant of land
ownership by the King’s (or Crown) and giving positional power to loyal nobles.
• This entrenched the allegiance of nobles to the King and the alignment of wealth and power to the King and nobility.
The Birth of the Common Law: The Extension of the King’s Jurisdiction [LDL 2.5]
• The successive Norman Kings each travelled around the kingdom hearing complaints against local officials.
• They decided ‘like cases alike’, also known as stare decisis, which eliminated arbitrary and 'unjust' decision-making that
had occurred previously.
• The King’s decisions were recognised as binding on the whole of England rather than being merely locally binding.
• There was a gradual growth in popularity and power of the King’s decisions replacing local customary courts with the
‘common law’ (i.e., law that was common to all of England).
• Stare decisis: a legal principle by which courts are obliged to respect the principles established by prior decisions – led to
the Common law’s success.
Formalisation of Legal Structures: Itinerant Justices and the Growth of the Courts [LDL 2.6]
• The creation of delegates of the King such as the Curia Regis - the King's 'court' (as an advisory body to the King) and
the justiciars (viceroy to the King) allowed decisions to be more conveniently made in the King's name.
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• In the 12th century the creation of traveling Justices In Eyre carrying the King's commissioner continued the
development of precedent.
• Specialisation within the Curia Regis occurred, forming three branches of common law courts (Court of Common Pleas,
Court of Exchequer and the King's Bench) each exercising a specialised function.
The Writ System [LDL 2.7]
• A writ was originally a command from the King to the King's county representative (the 'Shire-reeve' or later Sheriff) to
bring a person against whom a complaint had been made, to the court, to answer the complaint.
• A claim in the early common law courts could only be brought if the facts and circumstances fitted within one of the
recognised writs or ‘cause of action’.
• The writ system was the earliest form of procedural control over the workload of the courts.
• The writ system was further modified by the Provisions of Oxford (in 1258) in an attempt by the nobles to restrict
the type of writs that could be obtained.
• Recognised writs were purchased from the Chancellor and this commenced legal proceedings for a plaintiff.
Trial Procedures in the Early Common Law [LDL 2.8]
• One of the challenges for the King was being fair to all parties in a dispute when he had no 'local knowledge'. Three early
techniques to assist the King to provide justice despite his lack of local knowledge were as follows.
(1) Criminal cases - up to 1215, trial by ordeal was a version of justice which assumed divine intervention in the outcome of
the 'ordeal' would determine guilt or innocence. Ordeals included burning, scalding or casting into a pool of water.
(2) Non-criminal cases - obsolete by the end of 1200s, trial by battle presumed divine justice would go to the victor in a
battle between 'champions'.
(3) In all types of cases local people were involved by the King to assess who was probably telling the truth in a dispute.
Known as a wager of law this process was the origin of the jury system (with important differences to the modern system
which strives for impartial jurors).
Equity [LDL 2.9 & 2.10]
Key motivations for the development of 'equity' as an alternative system and doctrine to common law.
• During the 1300s - 1400s complex procedures in the common law courts (including methods of proof) and increased
workload began to obstruct justice
• From the beginning of the 1400s people petitioned the King about injustice of the common law courts
• The King delegated these petitions to the Chancellor who issued writs that were not confined by common law principles
or procedure but took a more Christianity-based approach to exercising discretionary judgement which became known as
'equity'. Equity was dispensed by the Chancellor in the Court of Chancery. Equity, and equitable remedies, evolved to
moderate the harshness of the common law.
• Initially equity and common law co-existed.
• Early 1600s the King intervened in rivalry and disagreement between the Chancellor (equity) and the Chief Justice of the
King's Bench (common law). The outcome of dispute was that equity prevails over the common law, a principle that
continues today.
• The moral aspect of equity is captured in the equitable maxims which are studied in detail in a course known as Equity.
(You do not need to learn these maxims for the FAL exam. You will study them more later in your degree when
you complete the course Equity).
• The discretionary remedies captured in the equitable remedies are further studied in your degree in Contract Law and
Administrative Law. (You do not need to know these discretionary equitable remedies for the FAL exam).
Recurrent themes
• In early English law who had power and law-making authority regarding property, resources and disputes? Who do you
think benefited from these arrangements?
• What events/conditions/pressures prompted or preceded the development of new legal institutions (such as the early
courts and equity jurisdiction) for resolving disputes in society?
• Did the development of the procedures described in this chapter for determining facts and outcomes, and for managing
these disputes and workloads, improve 'justice' (as you understand this concept)? Why/why not?
• Which features of these early legal institutions and legal processes been retained; which have been replaced?
• How important is an understanding of legal history to an understanding of legal terminology and the common law legal
system?
Questions
What was meant by the term 'the Crown' during this period? How has this been retained in current Australian law?
• The Crown in this period referred to the King. In current Australian law it refers to the jurisdiction.
What made the common law a popular way of obtaining 'justice'? (Do you know what is meant by the term 'common law' in this
context?)
• It was common to all the people
What is meant by the 'justiciability' of a legal matter or dispute?
• The limits upon legal issues over which a court can exercise its judicial authority/
What is the meaning of 'jurisdiction' as it is used in the heading to this section of the textbook? What meaning (or meanings) does
the word jurisdiction have more generally?
• King’s Jurisdiction refers to the King’s legal power, or, the common law
What is meant by a 'court' and 'precedent' in the context of the Curia Regis?
• ‘Court’ meant the sovereign’s personal retinue rather than a judicial body.
• ‘Precedent’ meant
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What is meant by a delegation of power?
• The King delegated his judicial power to royal delegates and Justices in Eyre.
Why is delegation of power an important concept in public law?
• Seeking royal justice became more feasible for the public as delegates could act in the King’s absence, and disputes
could be heard in all parts of the country.
What is meant by a 'viceroy'?
• A regal official who runs a country, colony, city, province, or sub-national state, in the name of and as the representative
of the monarch of the territory.
How is this term relevant to modern Australia?
• The Governor-General is effectively a viceroy to the Monarch in Australia.
What were the specialised functions of each of the three branches of the common law courts?
• The Court of Commons Pleas heard disputes between, or the pleas of, commoners.
• The Exchequer heard disputes involving the royal revenue
• The King’s Bench was a group of advisors who travelled with the King, who advised on the resolution of individual
disputes, and later, on more general questions of policy
In what way does the writ system remain relevant for common law court actions today?
• It highlights the underlying feature of the common law – its focus on procedure.
Even from your own general knowledge of legal procedures - how do you think trial procedures have changed and developed
since these early times?
• Then – no impartial jury; trials by ordeal and battle which were said to prove/disprove allegations; informal, simple and
speedy means of dispute resolution; methods of proof were primitive;
What gave rise to the creation of a body of law known as equity?
• Increased petitions complaining of injustice. The King was swamped and began to delegate the petitions to the
Chancellor, whose role it was to issue writs. Chancellors were trained as priests and took a different approach from
common law judges in considering allegations of injustice. The Chancellor-made, Christianity-based law became known
as ‘equity’.
Compare and contrast the common law with equity in around 1600. Summarise the similarities and the differences in a couple of
sentences.
• Common Law is more popularly known as case law, precedent law or judge-made law.
• In medieval England, parties aggrieved by a decision of the court would petition the King to do justice regarding the
harsh judgment. The King, in response to such petitions and complaints, in turn relied on the advice of the Lord
Chancellor, who looked into the dispute and sought to deliver a ‘fair’ outcome against the rigid principles of Common
Law. The Lord Chancellor’s role in administering equity was thereafter transferred to a separate court called the Court of
Chancery. Equity was developed with the intention of alleviating the harshness and inflexibility of the Common Law
rules at the time or the rigid interpretations given to such rules by the Courts.
• The common law establishes general rules which provide certainty, while, Equity acts as a check and balance of common
law. Equity is based on a judicial evaluation of fairness, reason, good faith and justice. Common Law entails applying the
rules of common law to the issue before the court.
What was the significance of The Earl of Oxford's Case (1615) 1 Ch Rep 1?
• It stated that the role of the Chancellery is to ‘correct men’s consciences for frauds, breach of trust, wrongs and
oppression, of whatever nature soever they be, and to soften and mollify the extremity of the law…’.
What is the nature of the equitable remedy known as an injunction?
• A court order requiring a party to do something or cease doing something
Module 2: The Foundations of Modern Constitutionalism
• What were the specific events, pressures or other factors which led to institutional change at the relevant time? What
factors influenced the form that these institutions took?
• How easy/difficult were each of the steps for the decline/sharing/loss of power and authority by the monarchy and the
transfer of this power to emerging legal institutions?
• Was law-making authority voluntary granted to the courts and the parliament by the Crown or was it seized/taken by
force?
• How was the transfer of law-making power to the courts and the parliament formalised? (Hint: often by statute)
• Which features of the original and transitional institutions and processes have been retained, which have been replaced?
Were changes to institutions and processes always improvements? Why/why not? Who did/do particular changes and
developments advantage or benefit? Why?
• How would you describe the nature and pace of institutional reform and change? Constant or variable? Rapid or slow?
Tumultuous or peaceful?
Magna Carta and the first parliament [LDL 2.12]
• Magna Carta was a list of demands made by English barons to the unpopular King John in 1215. The demands contained
a number of significant principles relating to freedoms and rights.
• The first recognisable antecedent to the modern English parliament was the parliament summoned by King Edward I,
The Model Parliament in 1295. This was initially an advisory body.
• In 1414, King Henry V acknowledged that no new statutes should be made by the Crown without the formal assent of the
Commons.
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