Intro to Law, pg 26-37

Chapter II: Common Law, Equity, and the Development of the Anglo-American Court System


A. The Common Law Courts and the Writ System


1. Common Law Courts

• Common law came from the medieval courts of the English king: the Court of Exchequer for the king's property and revenue; the Court of King's Bench for criminal actions and civil actions that breached the peace; and the Court of Common Pleas for all other civil disputes. Like all courts worth the name, they fought over jurisdiction, especially the last two.
  

Excerpt: A.W. Scott & R.B. Kent, Cases and Other Materials on Civil Procedure

• The Earlier English Courts: There were the three just mentioned, plus the Court of Chancery, which covered equity.
• Common Pleas: AKA Common Bench. Magna Carta made sure the court's location was fixed (at Westminster Hall) instead of following the king. It had a Chief Justice and three puisne (puny) judges. It had jurisdiction over it's own things and things brought to it from some local courts; also over common pleas (problems between individuals) but not criminal stuff (aka things against the crown). Exchequer and King's Bench had jurisdiction over some private problems too, but Common Pleas had exclusive jurisdiction over actions to recover land (real actions).
• King's Bench: Criminal cases, and civil actions involving breaches of the peace, and any other actions brought against a person in the custody of the king's marshal of Marshalsea Prison. It expanded to include other civil actions by virtue of that last, by first "arresting" someone on a spurious charge to get them into custody and thus into the court's jurisdiction. Real actions were excepted to this. [In order to start the proceedings, a "bill of Middlesex" was required, which directed the sheriff to arrest the miscreant on a (spurious) charge under the courts jurisdiction, with the actual charge tacked on. Later on an original writ worked too.] Court had the Chief Justice of England and three puisne judges.
• Exchequer: King's property and revenue. Jurisdiction was enlarged by clever uses of a writ of quo minus. The plaintiff would claim to have a debt against the crown that he could not pay due to the defendant refusing to discharge a liability to the plaintiff. Interestingly, the crown seems to have never taken advantage of the claims of debt being made (probably because the crown's personal court gained so much power from people making that claim). Court had a Chief Baron of the Exchequer and three puisne barons.
• Through these little tricks, all three superior courts of common law developed concurrent jurisdiction over actions between subjects, except real actions. Individuals could choose whichever court they wished.
• Exchequer Chamber: If a losing party wanted to try again, they had to obtain a writ of error from the Court of Chancery. The losing party became the "plaintiff in error" and the winning party, the "defendant in error." Courts of error went Common Pleas->King's Bench->House of Lords or Exchequer->Exchequer Chamber. Exchequer Chamber consisted of the Chancellor and Treasurer at first, but later just the Chancellor, with judges of the King's Bench and Common Pleas as assessors. Under Queen Elizabeth, it was provided that a case could go from King's Bench to another Exchequer Chamber composed of the judges of the Common Pleas and Exchequer. In 1830 the old E Chambers were abolished and a new one was created that consisted of judges from all three superior courts (minus whichever one had been in error). From this E Chamber, the case could be carried to the House of Lords as the last resort.
• House of Lords: In theory, Parliament had the power to correct decisions of any lower court, but in practice it was only the House of Lords who did so after the later Middle Ages. Appeals were treated as any other matter of parliament until 1844, when it established that only people who actually knew the law could be involved. Thus the judicial House of Lords consisted of the Lord Chancellor, ex-Lord Chancellors, and other peers who held or had held high judicial office. In 1876 it was increased by Lords of Appeal in Ordinary, to assist the hereditary peers learned in law.
• The Nisi Prius System: England's judicial system formed around contests between the king and local authorities. Pre-1066, it was between the king and his Witan (advisors) on one side and local tribunals on the other. Post-1066, the Norman kings' business was to establish a strong central government within the technological constraints of the time. They did this by sending judges and representitives on circuits throughout the realm.
• The full bench of each court would meet four times a year in Westminster. These times were called Hilary Term, Easter Term, Trinity Term, and Michaelmas Term, and each lasted but a few weeks. They determined all questions that arose during an action, except those during a trial. They could pass judgement on verdicts based on a variety of appeals. Basically, they determined the legality of questionable issues.
• Between these terms, the judges of the bench and others appointed by the king went on "vacation," meaning they did their circuits through the country. Trials would usually be conducted during this period, with appeals going to the superior courts during their terms.

2. Modes of Trial

• Some of the old school English modes of trail were wager of law (compurgation), battle, and the ordeal. The royal courts grew in popularity by using trial by jury over these older methods.
• A jury at the dawn of common law was not quite what a jury is today. Rather, it was a body of witnesses who had been summoned by the king's officials to testify. It was a device for a strong king to collect information.
• Henry II introduced jury trial to civil litigation, using neighbors familiar with the case as jurors. These jurors were used not just as witnesses but also as judges of fact.

3. The Writ System

• When a litigant wanted a royal court to take jurisdiction of a case, he asked the king's chancellor to issue a writ. The chancellor was an ecclesiastic who kept the king's great seal and supervised a staff who prepared all documents issued in the name of the king.

W.P. Blackstone, Commentaries of the Laws of England

• In order to get to the judiciary, a supplicant had to first contact the king via the clerks of the King's Chancellor and get a writ issued. The writ would tell the sheriff to find the accused party and make them do justice to the complainant, or else appear in court and answer the accusations against him. This system was part of a strong kingship; judges saw no cases without the king's approval via writ.

Examples of Early Writs

R. Pound & T. Plucknett, Readings on the History and System of the Common Law

• "William King of England to the Abbot of Peterborough, Greeting: I command and require you that you permit the Abbot of St. Edmund to receive sufficient stone for his church, as he has had hitherto, and that you cause him no more hindrance in drawing stone to the water, as you have heretofore done. Witness the Bishop of Durham (c. 1070-1080 A.D.)."
• These writs were pretty much just executive orders issued by the king.
• At the end of the twelfth century, a new writ came about that simply ordered a sheriff to bring someone before the royal courts to answer for an act. This became the prevailing form used to start things off in the royal courts.
• Writs from the King's Chancery were called "original writs" to distinguish them from writs issued by a court during a judicial proceeding.
• Writs started out as royal favors- permission to use the king's courts for what would otherwise be handled locally. They were executive because each writ covered only one situation.
• They evolved into writs de cursu- writs that were issued "of course" for anyone who could bring his case within a formula found in the existing writs. Lawyers would search the Register for writs that fit their client's case; if none fit, the client was SOL unless the chancellor was willing to make a new writ.
• Since every new writ expanded the jurisdiction of the royal courts, it was a rather political move by the chancellor to draft one. Under a strong king, the feudal lords would perhaps put up with it, but with a weak one there would be trouble. Henry II was particularly good at withstanding the pressures of the feudal aristocracy, and did a great deal to expand the power of the royal courts and common law. However, Henry III was a wuss and during his reign the King's Council (the predecessors of Parliament) enacted the Provisions of Oxford in 1258. This said that the Chancellor could seal no new writs without the sanction of the king and his council- meaning the council, made up of feudal lords, could keep its fingers in the formation of writs.
• Under Edward I, not-a-wuss, the Chancery got some power back thanks to the Statute of Westminster II. True writ innovations were reserved to parliament, but the chancery could issue writs in cases that were similar to pre-existing writs.

Statute Westminster II

• Everything I just said in the last sentence of the paragraph just above, except in fancier language.

B. The Forms of Action at Common Law

1. Introduction

• "Forms of action"- part of the writ system, the things done in a particular writ. Unique procedures were followed in each. As the writs proliferated, it became easier to choose the wrong writ for a particular case, resulting in catastrophe.
• All three royal courts eventually obtained the system of original writs. A writ stated the substance of the plaintiff's claim, as well as the particular mode of pleading and the type of judgment involved. If a plaintiff picked an inappropriate writ, they had to start all over again. "He must play the rules of the game he has chosen." -F.W. Maitland.
• In the latter half of the nineteenth century, both the UK and the US abolished forms of action in favor of a single uniform method of civil action.
• Another Maitland quote: "The forms of action we have buried, but they rule us from their graves."
• This doesn't mean that the law suddenly thinks trespass is the same as assault- only that the form followed in either case is the same. There is still a requirement to prove that the facts of the case fit the characteristics of trespass. The forms have gone but the substance remains.
• The abolition of the forms of action did not create any new rights or remedies- the whole of the system of common law has deep tangled roots in the old system, and there is very little in the new that wasn't in the old. Many of the strange twists modern law takes can be found in the forms of action.
• The next page is 37, but it starts section 2, and it seems odd to only do a sliver of that section, so I'll leave it for now.