Henry was an aggressive person who was left with a bankrupt state and needed money. He was the King chosen from the War of the Roses, and there had been a weakening of the state. The modern state really begins with him – the notion that the state will be in control was Henry’s idea. He attacked the legal profession and the way that they were creating particular property relationships ; he imposed the old feudal taxes back on these relationships. Importantly, he also attacked Papal power culminating in him eventually setting up and heading his own church (the Church of England).He passed the act what was known as the Act of Supremacy that placed him as the ultimate arbitrator of religious and state matters.
The pope had no role in England any more. As head of the church, he took all the monasteries away and sold them for massive profits. At this time he also set up a number of courts.
The first of these was the Court of Star Chamber. Henry, Mary as well as Elizabeth used this. It had both a criminal as well as civil jurisdiction and was there to fix up problems of fairness in crime (e. g. corruption in juries, riots, other corruption). Eventually it became a political tool.
Judgment would be handed down in secret; there would be no appearance of the accused. Once the person had been found guilty of treason, they would be sought for assassination. It was eventually abolished at the end of the Stuart reign in 1681. There were other courts that came straight from the king and were not part of the common law system (prerogative system).
An example was the Court of Request – a court for poor people when they were not satisfied with common law. There was also a Court of High Commission that was there to deal with ecclesiastical Immoralities (e. g. priests being dodgy).The common law system could not sort everything out (as deals only in damages).
The writ system, which was developed in the feudal times, began to bog the common law system down (e. g. land ownership law was previously based on status rather than contractual relationship). Where common law could not sort these things out, people would seek the advice of the king via the Lord Chancellor (cross between a judge/politician/etc).
The Lord Chancellor was primarily there to give advice about moral issues – a keeper of the king’s conscience. For a long time this role was held by a priest.Eventually the Chancellery becomes another kind of court based on the Maxims of Equity. You would go to equity if you wanted the goods rather than damages – it is providing for a different remedy. As time progressed, this became a second body of law that sits alongside common law. Equity became it’s most powerful under Henry VIII and he ultimately did everything he could to destroy the Courts of Equity (bribing judges, assassinating people etc). It remained popular however because it recognized relationships that common-law did not and you could avoid taxes under it. James the VI of ScotlandJames VI was asked to become king after Queen Elizabeth died.
At this time there were enormous religious problems. In both England and Scotland there was an uprising of the protestant church (James himself was a protestant but didn’t mind either way about Catholicism). James had grown up in Scotland where there wasn’t a parliament ; he thought that ultimately, the king had the divine right to exercise the law. Conversely, the parliament thought that the king should only be able to do this through the workings of the parliament.
James dissolved parliament and tried to run the country himself.He also changed the law at will. He came head to head with the legal profession – especially the Lord Chief Justice of Common-law – Lord Justice Coke (pronounced Cook). Cokes philosophy was that you could only know what the law was if you were schooled as a lawyer. James didn’t understand the artificial reason of the common law – not a wise thing to tell a king. Coke survived the criticism and went on to write Institutes of the Law of England.
At the time the Lord Chancellor was Francis Bacon was arguing on the relationship between common law and equity.Bacon believed that common law should prevail over equity. Bacon also believed in Positivism – i. e. that law should come from the sovereign. Coke had an alternative view to this and challenged the authority of the parliament to sit as a court.
This was only the domain of the common law judge. James the VI thought that equity should prevail. This principle remains today. Equity is superior to Common Law. Bill of Rights – Limited the rights of the parliament to make laws without the parliament.
The Sovereign could only execute sovereign laws through the parliament. The Act of Settlement – Still in force today.The British Sovereign can only be a protestant. Prince Charles has been trying to change this.
Effectively, the Monarch of Australia could only be a protestant. The act was bought in to prevent any members of the Stewart family presiding over the throne. Ejectment Legal Fiction Instead of selling land, people would sue each other. Names would be made up i. e.
John Doe or Richard Roe (names which still remain today). Problems occurred in equity. In later years the judgements of law were recorded and the systems of precedence soon developed (started in 1621 in the reign of Lord Nottingham).
Lord Elden – anally retentive. Took years to write a judgement (e. g. up to 16 years! ). Jeremy Bentham – Utilitarian. Maximise the pleasure of the people in society and minimize the pain. Dog law.
Nobody knew what common law was. Thought that there should be clear, codified law. Procedure was reformed at this time. Law of Deodand was removed in the 1800’s with the advent of the train (i. e. if a train ran over somebody, the family could not arrange to take the train ! ) Criminal procedure rationalized but very harsh – loads of capital punishment.Also convicts being sent elsewhere.
Massive expansion in the laws available to be broken. Judicary acts – occurred in England in the 1870’s. Started the supreme court of judiciary. The Judiciary Court would be split up to consider different matters, but they would no longer be split up to deal with equity or common law separately.
Fusionists believe that equity and common law were fused together during the Judicary Acts. The opposite view was that the courts were fused but the laws were not. Combined in administration but not law.
Therefore, if you wanted to look at a contract, you would need to look at the common-law of the contract as well as the equity law of contracts. Judges are still fighting about this though in Australia, Fusion did not occur in NSW until 1970. Be careful about saying that you are being schooled in a common law system (judge made law system) – BUT, there is 2 main bodies: a common law proper (laws which came from Kings Bench, Common Please, ex checker) and the body of law that was developed by chancellery. Together these were the judge made law system that was brought to Australia. SummaryThe British constitutional system that we have partly inherited is really a system of historical accidents and compromises – struggles for power about what the law should be; and the law being used as way of implementing or spreading that power out. We have a separation of powers as we have a separation of functions between the legislature, the executive and the judiciary, but we only have this because of an accident. This accident was 1000 years worth of British History – 1000 years of debate determining what the king can or can’t do, what the judiciary is or isn’t allowed to do, and what the legislature is or isn’t allowed to do.
We are not like the Americans; there is no break in the history where we can say “The Australian System starts from now”. They pulled their legislation up by their own bootstraps. There was a declaration of independence that decided what type of govt. they would like to have. Ours is based more heavily on history. One of the principles that came out of this struggle is that law should be separate or different from power. This is the idea of the rule of law – i. e.
that the law is powerful, not the people that make the law.Therefore, even the sovereign is subject to our legal system. It’s not the case that the sovereign makes the law. In the 1900’s, this became an important principle in WW2 where we had competing countries with competing governments and systems of law whereby power and law are the same thing (the Furor system). The Rule of Law stands for three basic propositions: 1. The law should operate with certainty: a normative “ought to be principle” (see Cokes arguments with Kings James I – “It’s not what you want; it’s what the logic of common law dictates”). 2.
The law should be about equality: “ought to be principle” (though often it’s not -are you a Catholic or are you a Protestant? /Are you a British Subject or an Aborigine? Until 1834, slavery existed in common law. Until 1870, married women were the property of their husbands – no right to sue, enter a contract etc). 3. Generality: The law applies the same way to everyone (we all are subject to the same laws – no distinction based on rank, wealth etc). Albert Van Dicey “An Introduction to the Study of the Law of the Constitution”.
Principle of the Rule of Law (as discussed). 2. The idea of parliamentary sovereignty – i. e. we require the sovereign to act through parliament. These two principles are always in conflict. Our sovereign wants to take away some of the Rules of Law to combat terrorism (e.
g. retrospective laws to find people guilty of an offense). Another e. g. Habeas Corpus; the right to be brought before an officer of the law to be able to plead your case – yet authorities argue for longer periods of detainment before having to release a suspect.
Power loves power. Unfortunately, sovereigns never want to get smaller.