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Sample essay topic, essay writing: A History Of English Common Law - 1987 words

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The origin of English Common in the 12th century was sparked by the death of King Henry I in 1135. The nephew of Henry I was Stephen, and he was acknowledged to be the rightful king, but the magnates and such had sworn loyalty to Henry's daughter, Matilda. The entire reign of Stephen, which lasted from 1135 to 1154, was spent fighting with Matilda and her French husband. Upon Stephen's death the son of Matilda, Henry II, became king in 1154. It was from here on that the King started to take noticeable interest in the dealings of the court system, and put in to place a royal system instead of allowing the lords to deal with all matters in feudal courts.1 According to F. W.

Maitland, ..The reign of Henry II is of supreme importance in the history of our law, and its importance is due to the action of the central power, to reforms ordained by the king. ..He was forever busy with new devices for enforcing the law. The term "common" is used because the laws established are just that, common to every jurisdiction and administered through a central court.2 When Innocent III ruled, the term was used in the church as well as in the royal courts to distinguish ordinary law from the law applicable to particular provincial churches.3 The term "common" also stems from the fact that the law was "characterized by processes of categorization and routinization, in particular the routine royal treatment of a wide range of cases."4 Arthur Hogue sums up the common law by using two opposite views. What the common law is not, and what it is. He says The common law is not a written code. ..the principles of common law have always eluded complete embodiment in any code or collection of writings. Judicial decision recorded on the plea rolls of the common-law courts, declaratory statures, and learned treatises on the common law may all express the principles of the common law, but these writings never comprise its totality.5Another rule that does not apply to the common law is that the common law does not apply to a single group, for example the church. Therefore it is unlike the canon law

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Third, the common law is not local custom for everyone, and it is not identified along with the rules of any of the local courts. Specialized rules are not part of common law. Rogue goes on to explain what the common law is by using five simple explanations. First, the common law is a "body of general rules" that apply universally throughout the realm. Second, royal courts enforce the laws. The treatise called Fleta states that "the Crown asserted a general responsibility for the judicial work of every secular court in the land." Third, the laws are made in reaction to actual legal controversies, as opposed to the whim of the lawmakers.

Fourth, the jury selected becomes increasingly more knowledgeable about the facts and particulars of a certain case. Finally, the supremacy of law is very important to the tradition of common law. All subjects are held responsible for the laws decided, and are all subject to examination. These five principles of common law briefly explain what common law is.6 To differentiate between how the laws of England changed after King Henry II, a comparison of the court system can be used. Local, ecclesiastical, and borough courts decided cases in the old system of English law.

Each of these courts could render very different decisions based on the same case and it was acceptable. The common law courts can be listed as Common Pleas, Seignorial courts, King's Bench, and Exchequer.7 The local courts, or courts of the counties, began to lose their importance as the royal courts, the Common Pleas, began to extend jurisdiction. The people of the area created the local courts; the royalty had nothing to do with it, so these new Common Pleas courts took away certain feelings of local pride. Therefore, these common courts were the most difficult to establish, and for many years many of the hundreds and such remained intact to protest the new rule. Local common law courts, referred to as shire courts or hundreds, had irregular schedules and meeting places. Sometimes the courts would meet outside, and other times they would meet in houses or monasteries.

In to the thirteenth century, however, a schedule of meetings and meeting places had been established, making it easier to organize and hear pleas. These local courts heard claims that dealt with land, violence and theft, and some ecclesiastical cases.8 The hundreds dealt with and enforced a system of peacekeeping called frankpledge. This body of police consisted of about ten men who swore to be faithful to the king, and swore to bring wrongdoers to him so that they could be punished. The group was collectively known as a tithing. Once a boy reached the age of twelve, he was expected to swear and oath of loyalty and strive to belong to the tithing.

Certain men were not included in frankpledge for various reasons. The inhabitants of the forest, clerics, and those under control of lords were not allowed to become part of the tithing. The tithing was a basic form of law enforcement that is similar to the system in modern England. The men are the police, guards, punishers, and examples for the entire area. When one does wrong, he is amerced, or forced to pay a fine or suffer a punishment. When someone who is not a part of the tithing commits a wrong, the entire community is amerced, so it is considered a good to the whole of the community if as many men as possible are allowed to be in tithing.9The seigniorial courts were established for the Lords. The greater men were distinguished from the lower lords in all ways, including the judicial system. The honorial courts were not only a place for the lord's pleas to be heard, but were often used as a sort of advising time for the lords to meet and discuss issues with the vassals.

The lords generally kept jurisdiction over their own households, but some sought to extend their personal jurisdiction to the actions of any man on their property. This type of jurisdiction was commonly referred to as "sake and soke." This type of jurisdiction is like that of the hundreds in most ways. Along with sake and soke comes the right of lords to exercise infangentheof, or execution. The hundred courts were not allowed this right.10The King's Bench court generally deals with the placita coronae, or the pleas of the Crown, criminal cases, and appeals. The appellate branch of this jurisdiction was over the court of Common Pleas.

These two courts exercised a joint jurisdiction over civil actions. The King had a choice to sit on the bench with the judges and make decisions, as he did occasionally, hence the term the King's Bench.11The Court of Exchequer was made of the marshal, the chamberlain, the justiciar, the treasurer, the chancellor, accountants and clerks. These men sat to decide royal financial matters as well as other pleas. This court was basically the only court in Angevin England that could not be ignored anywhere.12 These courts, along with a few others, made up the judicial system that imparted common law. There are differences between the common civil and common criminal laws however, although they are decided in general by these same courts. Henry II was the first to require a jury of indictment. This meant that a jury of men who swore loyalty to the King was responsible for deciding whether or not a man could be guilty of a crime.

If the jury decided that he could have committed the wrong, then he was sent to trial. The regular jury was then selected, and usually it consisted of most of the same men from the indictment jury. Once it was decided that this was unfair, a petty jury was selected of different men. These men were often from the same area, as it was expected that they would know something of the occurrence and be better able to make a judgment of truth and fact than someone who had no previous knowledge of the case or who was involved.13Land holding in common law is difficult to classify. The "customary framework of the control of land held 'in fee'" can easily be divided in to three categories, the first of which is security of tenure.14 If a lord forfeits his lands, or does something to make the King take his lands, the tenants on the land are in danger of losing their usage of the same land. Customarily, a tenant had considerable security in relation to the possible change of a lord.

It was believed that the longer a man in good standing held the same land, the better chance he had of keeping the land and not being forced to forfeit it.15The second category of land holding is heritability. After the Norman Conquest, the Normans were accustomed to the idea that the son was the heir to the property, and would always inherit what his father had owned. This idea held true after the conquest and in to the Anglo-Norman period. To ensure the proper land was being inherited, records were kept referring to the gifts of any man to another. Some charters written, however, were written to ensure that the landholder knew that his holding was only for life, and could not be passed to his children.

An example of this would be the church giving land to laymen. When there were several male heirs, the eldest received the entire inheritance.16 It was the same with females until around the 1130's, when the inheritance was divided among all of the daughters of a family without a son. As can be expected, there were several instances where the inheritance was not definite. If the son was a minor, then the lord might wish to have a temporary adult vassal. Lords were also wary of distributing their land to more distant relatives of the deceased.

Another example of difficulty in determining an heir would be when the man had married more than once and had subsequent male heirs. The lord did have the authority to choose who got the land, or not to grant the land to anyone at all.17The third landowning classification is alienability. The first way to be alienated is subinfeudation. This is when the land is given to a new tenant, and that new tenant owes his services to the lord, and relieves the old tenant of those duties. The second method is called substitution.

Both of these involve the taking away of land from a tenant. When a lord wished to give land to the church in a gift, he often had to alienate it from a tenant of his. Tenants were also allowed to give their holdings to others, as long as the receiving tenants promised to be loyal to the lord. These land-owning classifications are used primarily to describe how the land was held and who it rightfully belonged to, which is helpful to common law courts in settling disputes over land and between lords.18The monarch who had the most influence at the beginning of common law was Henry II. In 1154, Henry was crowned King of England. His desire for a more absolute government was visible as soon as he took the throne. He was already duke of Normandy and of Aquitaine, so his French affairs kept him out of England for the majority of his reign.

It was Henry II who established the desire of the monarch to control the laws of the land, and therefore the new court system is attributed to him. King Richard I and King John were abusive and negligent rulers, but they failed to destroy th ...

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