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Common Law History Act 1, From Form of Action to Precedent — Transcript

by Olivier Moreteau · 4,545 words · 798 segments · language en · Watch on YouTube

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0:03welcome back to a series of meetings
0:06that will deal with common law history
0:09a play
0:10that will be organized in four acts and
0:14we'll start with act one from form of
0:17action to
0:19precedent
0:21the slides give you a synopsis of
0:25civil law and common law
0:27how much they differ we have seen
0:31in the previous part of the course that
0:34the city law is based on books and on
0:37codes and is mostly legislative we will
0:41discover that the common law has
0:43developed on a case-by-case basis which
0:46does not mean that legislation doesn't
0:49have its room and actually it occupies
0:52more and more room these days
0:55city law is right driven you identified
0:59rights in the codes whereas common laws
1:02we will see is remedy driven it moves
1:06from problem to solution and of course
1:09you may conclude from the solution that
1:12parties have rights
1:15but remedies precede rights as one says
1:19in a common law setting
1:21the last point that differentiates the
1:24system
1:25is that the civil laws we have seen
1:27tends to be general and favors abstract
1:30legislative rules as a parody as a model
1:35of the rule whereas the common law
1:39favors fact-based court rulings which
1:42makes the law a lot more precise and we
1:46will see that you find that degree of
1:48precision
1:50also when you are dealing with statute
1:55all this regarding common law history
1:59has a start that i'm going to place it
2:02may be a little bit artificial
2:04at the time of the norman conquest in
2:071066
2:09that does not mean that there was no
2:10legal system in place before before the
2:14conquest justice in england like in most
2:18places in europe was chiefly local and
2:22it was administered by hundred courts
2:24county courts
2:26that applied local customs you did not
2:30have anything like a common law of the
2:34realm
2:35after the conquest
2:37the new dynasty
2:40with william called the conqueror will
2:44set up a new feudal system that he is
2:47replacing gradually the old feudal
2:51system that had existed on the island we
2:55will see that the dynasty will create a
2:58system of central courts that will gain
3:02power and traction
3:04as his story goes
3:06and these central courts or whale courts
3:10have gradually
3:13elaborated a common law system a system
3:16that is called common because it is
3:18common to the whole kingdom
3:23here you have visuals of the feudal
3:25system which is a sort of pyramidal
3:27system with the king at the top
3:29and
3:30you see that below the king you have
3:33nobility and clergy
3:35uh clergy
3:37back then roman catholic had much
3:40importance in the administration of the
3:42kingdom the king was administering the
3:44kingdom with the help of the nobility
3:47and the church
3:49below you see a lesser nobility with the
3:52barons
3:53and
3:54knights
3:55and
3:56below at the bottom of the food chain
3:59you'll find
4:01uh the serves you know free men and
4:04serves people who were actually
4:06cultivating the land why is this
4:09important well it has been key in the
4:12development of a number of legal
4:14doctrines and particularly
4:16property law you will see that even in
4:20the united states we have though we
4:22never had a feudal system in place in
4:25north america remnants of this feudal
4:27system because relationship between
4:31different categories of owners or people
4:33who control the land are controlled by
4:36sort of personal
4:38relationships that have developed from
4:41that feudal system
4:45an important step that was made by the
4:48new king of england william the first
4:51was to do a big survey of his kingdom he
4:55wanted to know
4:56what rights lords and people could have
4:59on every piece of land in the country
5:02and it is a
5:05very very detailed survey because not
5:08only you have the description of every
5:10piece of land telling you where it's
5:12coming from and who controls it but
5:15there is even a sort of census of cattle
5:22that you find in this book that is
5:25called doomsday book it's been ever so
5:27important to decide property disputes in
5:31the future but also of course for
5:33taxation purposes
5:36uh the new dynasty otherwise did not
5:40much
5:41interfere with the sort of local
5:43management of the land
5:46uh they sent
5:47sheer ives that became sheriffs that
5:51were
5:52mandatories or agents of the king to
5:56find out what was happening in the
5:58various counties but the new monarchy
6:02has developed a system of wild
6:05that had their seat
6:07in the city of westminster you call them
6:09huayra courts or courts of westminster
6:12the first one was the court of king's
6:15bench it was named king's bench because
6:17the king himself could sit as a judge on
6:20this court and it was a sort of central
6:24criminal court hearing the most
6:27important
6:28criminal cases they were called felony
6:31felony was the most serious crime in a
6:34feudal society
6:36vassals were promising allegiance to the
6:39king
6:40and betraying this oath of allegiance
6:43was called felony so whenever
6:47lords or lesser nobility people were
6:51acting against the wild peace they could
6:54be tried by the court of kings bench
6:57they also created a common court of
7:00common pleas police
7:02that had jurisdiction over several cases
7:05chiefly regarding land 10 euros on land
7:10this is not surprising in a feudal
7:12system that goes from top to bottom the
7:15king at least in theory is the owner of
7:19his kingdom
7:21and any dispute regarding land ownership
7:25in a sense
7:27impacts the whale peace and
7:30that justifies that a central court
7:33would have jurisdiction and by the way
7:36even to this day when land is abandoned
7:39and nobody is inherited the land
7:42inheriting the land the land goes back
7:44to the crown and the queen of england
7:47therefore would be she is in theory the
7:50owner of her kingdom but practically
7:53inherits
7:55land when there is no hair and the third
7:58court to be mentioned is the court of
8:01exchequer that comes actually from the
8:03province of normandy
8:05and it was a sort of court of auditors
8:10their task was to verify
8:13once a year the state of the wild
8:16treasury count the monies that was in
8:20the coffers and to do this they were
8:22putting a big tablecloth
8:25with the
8:27which resembled an exchequer you know
8:29chess board and they were piling up the
8:32monies and the bearings of the exchequer
8:34they're verifying uh that the accounts
8:37were accurate and this court had
8:39jurisdiction over any revenue or tax
8:44dispute
8:45that may develop once the king starts
8:48taxing the nobility in the and the
8:52bourgeoisie
8:55originally this while court had a very
8:57narrow and limited jurisdiction the
9:00while interest of the royal peace must
9:03be at stake to justify
9:06that a while court would take the case
9:08because otherwise based on the
9:11pre-norman conquest system
9:14jurisdiction used to belong to the local
9:17courts the county courts but also the
9:20minority courts because the lords had a
9:23right of justice over their land
9:29however it was it clearly appeared that
9:32justice in the royal court was a lot
9:35more efficient and reliable than local
9:39justice and i will describe in this
9:41video a move or a shift
9:44to
9:45develop or increase the jurisdiction of
9:48the royal courts so that it goes beyond
9:51cases that strictly speaking impact the
9:54world interest
9:56two cases that
9:58could be described in our days parlance
10:00as purely private interest driven
10:06so the jurisdiction of these while
10:08courts will gradually expand and for
10:11this
10:12new forms of actions which were
10:14necessary to move a case
10:17to these while courts and particularly
10:19the court of kings bench will be created
10:23and as jurisdiction expand these while
10:26courts will have more and more
10:28opportunities
10:29to develop a common law that is going to
10:34conflict and substitute to the local
10:38customs over time
10:41in the late 15th century at the time
10:43when the tudor dynasty comes in place
10:46when the wild power is really becoming
10:49very very strong
10:51in the kingdom while courts will
10:53supersede
10:54local courts
10:56and
10:57they actually did this by just turning
11:00around the interpretation of the whole
11:03procedure that thus far said
11:06you are not going to
11:09bring a case to the whale court unless
11:12it is worth a minimum of 40 shelling you
11:16don't want these while courts to
11:18adjudicate on petty disputes they
11:23finally turned that rule around saying
11:25that every case above 40 shilling
11:29should as a rule
11:31be
11:32adjudicated by the royal courts
11:35that caused of course the local courts
11:37to be very unhappy they were losing a
11:39lot of business
11:41that way
11:44royal courts
11:45were typically sitting on bar which
11:48means full bench four times a year
11:51in
11:52the palace of westminster or in
11:55westminster hall
11:57but
11:59during the rest of the year they were
12:01doing circuits around the country which
12:04means that the judge would ride a horse
12:07and go to the other important places in
12:11the kingdom to administers those cases
12:14that have that were impacting the whale
12:17interest and in the united states we
12:20have
12:21inherited that concept of circuits and
12:23we have had certainly in the 19th
12:25century circuit judges
12:28riding
12:30the country
12:31to administer justice
12:34another invention
12:36of the while court system is the use of
12:40a jury of ordinary citizen for fact
12:43finding how did the juries appear and
12:46develop
12:48in the country
12:49um
12:50actually when the royal judge was coming
12:54to
12:55adjudicate a case
12:58the judge was saying bring me 12 people
13:01of the community and i will ask them
13:03about the facts these 12 people were
13:06actually some sort of witnesses but the
13:10quality of the testimony they would give
13:12was very often hearsay and typically you
13:16know jurors end up saying well you know
13:19this is what i've heard
13:21but you know ask my neighbor my neighbor
13:23was a direct witness
13:25and gradually royal judges found it more
13:28convenient to call the actual witnesses
13:32but the jury would remain in place and
13:35actually the task of the jury was to
13:38listen to the witness get the testimony
13:42give a verdict
13:44based on those facts and the task of the
13:47judge coming
13:48on circuit would simply
13:51to give a judgment over that verdict
13:55this is the way the system of jury that
13:58is so important in the united states
14:00today came to exist or to develop in
14:04medieval england and we from that time
14:07are distinguishing fact-finding by a
14:10jury from the decision on the law that
14:14is made by a judge
14:17now when there was a difficult legal
14:20question
14:22it may not be wise to have been resolved
14:26by a single judge in circuit
14:29in that case the parties would have to
14:32move to london to westminster where the
14:34important legal question would be
14:36resolved are bombed by the full bench of
14:40the court so the system was remarkably
14:43efficient because
14:45under the supervision of a sheriff
14:48verdicts were taken
14:50and
14:51judges were very often actually rubber
14:54stamping
14:55the decision you know the verdict of the
14:57jury deciding on the points of law and
15:00the court in westminster could focus on
15:03the most important legal
15:06questions
15:07and until
15:09the
15:1018th century the system will function
15:13with only a handful of judges
15:16it is quite remarkable to see that in a
15:20country that will count several million
15:22inhabitants
15:24a handful of judges not more than 12 of
15:27them until the 18th century
15:30will suffice to administer justice in
15:34england and develop the common law on a
15:37case-by-case basis the risk of
15:39inconsistency was greatly diminished by
15:43that way
15:44now i alluded earlier to the rate of
15:48forms of action that needed to exist in
15:52order to bring a case to
15:54the whole court and particularly to the
15:57court of kings bench
16:00a red
16:01was actually a command made in the
16:04king's name ordering a party to do a
16:07certain thing now it will sound a little
16:10bit shocking
16:12but
16:12the plaintiff
16:14had to apply for a writ
16:17the writ was administered was given by
16:20the chancery the administration of the
16:23lord chancellor that will be mentioned
16:26later on in these videos
16:28and it actually ordered the defendant to
16:32either to give satisfaction to the
16:35plaintiff
16:37or
16:37if having arguments to defend the case
16:41appear before a while court
16:44so the rate would include a short and
16:48standardized statement of the fact it
16:50was actually a
16:52pre-written
16:54form that would be used you know in a
16:57case
17:00these rates were specialized it was not
17:02a general writ where you would write you
17:05know the facts of the case
17:07but depending on the nature of the case
17:10you had to apply for this or that read i
17:13will give examples in a few seconds
17:16and the problem was that if you started
17:19the case with the wrong rate you could
17:21not
17:22shift horses you know in the course of
17:25the proceedings you had to start the
17:27case all over again with the delivery of
17:31a different rate as if for every writ
17:35corresponded a sort of civil code a code
17:39of civil procedure i mean to say
17:42you have here example of all the rates
17:46the first one that i will describe was
17:48the writ of debt
17:50imagine that
17:52a has been lending money to b and b is
17:56not reimbursing the money
18:00a would have an action against b you
18:03would have to apply for the rate of debt
18:05asking anyone owing a liquidated sum of
18:10money
18:11to pay it back
18:14to the plaintiff so receiving the rate
18:18of debt
18:20the defendant or debtor had two options
18:24either you know that you owe the money
18:27and you better pay the money right now
18:29because you don't want to mess with the
18:31justice of the whale courts is going to
18:34be very expensive at the end of the day
18:37but if you have argument if for example
18:39your argument is that you have already
18:42repaid the money then
18:45you have the right to appear in court
18:48and present your argument
18:52next in line i have the writ of covenant
18:55covenant
18:57the word is used in the bible and the
18:59art of the covenant an alliance a pact
19:02that is made between two people
19:05whenever
19:08a had promised to be
19:10to give a piece of land after death to
19:14give his right on the land after death
19:17you would do that on a formal document
19:20that you would call a deed and you would
19:23affix your seal
19:25at
19:26the end of the document and if you are
19:29not an important person owning a seal
19:32you would ask your local lord to affect
19:35his seal to the document
19:37now the party making a promise
19:40on a deed under seal
19:43could in case of non-performance
19:49be summoned to appear before the royal
19:51courts under a writ of covenant
19:56you had also the writ of trespass
19:58trespass since you studied taught is a
20:00term that is probably already familiar
20:03to you
20:04there was trespass whenever a person
20:07uh was assaulting
20:09uh another party
20:11or
20:13doing you know any kind of physical
20:15violence called back then battery you
20:18could have also trespassed to land which
20:21was invading the land of someone else or
20:25breaking in or trespass to goods or
20:28chuckle if you were actually taking away
20:31cattle that belong to another person
20:35so in all these cases
20:37you had the victim had an avenue to
20:41obtain damages or restitution of cattle
20:46or
20:47whatever remedy the court would found
20:49appropriate by the use of the writ of
20:52trespass which is the ancestor of all
20:56our modern taught action
20:58you had trouble or debt in you all these
21:01words actually come from french travel
21:04it comes from trove to find you find a
21:08third party in possession of something
21:10that belongs to you this is not you
21:13would go either for trespass if the
21:15person took away the thing directly from
21:18you or you would use trouble if the
21:21thing is in the hand of a third party
21:23that may have purchased actually uh the
21:26property from the trespasser so
21:28restitution was based on the rate of
21:31travel you also had debt in you and
21:34there were big conflict and litigation
21:37whenever you were deprived of your
21:39property whether you had to use trouble
21:41and debt in you and way down the road
21:45they had to merge these two actions to
21:47simplify the law but all these shows
21:50that the administration of the law was
21:53very formalistic you had to identify
21:57the proper writ at times it was
22:01subtle
22:02like in the case of trevor and detinue
22:05the writ of right the one at the bottom
22:07of my list
22:09is
22:10actually an action that could be used by
22:13anyone who was dispossessed from or some
22:16right
22:17over the land
22:19and uh oh and that is also an
22:22interesting phenomenon because normally
22:24disputes regarding land
22:27had to go to the court of common police
22:29but the court of king's bench
22:31has been stealing some of the court of
22:34common police business by developing the
22:36writ of right and you see by the way
22:39that the court of kings bench that was
22:41originally a central criminal court is
22:46by the 13th and 14th century doing much
22:49else it is adjudicating civil law
22:52disputes but they were very very artful
22:55because you see the whole theory was
22:58that
22:59if
23:00the
23:01defendant disobeyed the writ which was
23:05an order in the king's name to pay
23:07damages give back property etc
23:12you disobeyed an order that was given in
23:15the king's name you were disturbing the
23:18royal peace and the case became almost a
23:21criminal one and that justified the
23:24season
23:25of uh the royal court
23:28so you see that they are using
23:30artificial ways to expand their
23:33jurisdiction
23:34and literally
23:36over time swallow
23:38most of the jurisdiction or of cases
23:43that naturally should have gone to the
23:46lower courts
23:49i'm going to develop elaborate a little
23:52bit on the ex
23:54example of trespass
23:57trespass
23:58was
24:00the formula in latin say v at
24:05you've been acting by force and using
24:09arms against the peace of the king
24:14that's what the red would say
24:18but
24:19since the
24:20scope of the action was a little bit
24:22narrow
24:24they allowed and it took a statute to do
24:28that
24:28trespass on the case
24:31if the wrongful act was not caused
24:35directly or by force of violence you
24:38could get a wreck in constability kazu
24:41an action on the case which would open
24:45up an avenue to the white court in a
24:48case of simple negligence when the
24:51damage is caused by negligence rather
24:54than by intent
24:56you see
24:57how
24:59the court of king's bench is working and
25:03developing
25:04these rats
25:06to its advantage to take more and more
25:09cases that really should have gone to
25:13the
25:14local court they even further down the
25:18road
25:20developed the use of trespass on the
25:23case in disputes that would look
25:25nowadays
25:27like contract disputes but i will
25:29discuss that on one of the other
25:32videos
25:34with this slide i am showing you that
25:36the system of red or special forms of
25:40action has been transplanted to north
25:43america you have here an example of a
25:46writ of trespass
25:47in the state of new york so what i'm
25:50describing here has been at least at
25:53some point relevant in the united states
25:57but i will show you you know the
25:59relevant and how it informs and impact
26:02the way we develop the law in the united
26:04states even in the 21st
26:07century because from everything that i
26:10have said thus far you see that the law
26:13has been developing
26:14from
26:15procedural thinking
26:17towards developing some substantive
26:21law
26:22um
26:25the focus of the chord action was to
26:28found the proper action in presenting
26:31the presented the proper way it's only
26:34in the 19th century that these old
26:37specialized rates
26:38will be replaced by one
26:41category of rates the writ of summons
26:44that could be used in any sort of case
26:48and this has happened in
26:50england but also in the united states
26:54however
26:56as the great historian of the common law
26:58maitland was heard saying or as he wrote
27:01in the form of actions as common law the
27:04old forms of action we have buried but
27:07they still rule us from their graves
27:10what does maitland actually mean here
27:14we may no longer have the rate of
27:16trespass
27:17but your book on tort law is still
27:20discussing trespass to the person
27:22trespass to land or trespass to goods
27:25and chattel
27:27all the categories that we have
27:29in common law thinking
27:31developed actually from these old rates
27:35and you will see several examples in
27:38another
27:39video so the legal concepts have been
27:42shaped by the all forms of action it's
27:45just a little bit like baking you know
27:47to bake a cake you put the dough into
27:51a form you put it in the oven you know
27:54with the form and then when it is out of
27:56the oven it has taken shape you may
28:00dispose of the form
28:02or put it back to a
28:05a cabinet to use it another time but the
28:09arcade still has the shape of the form
28:12and this is exactly what is happening
28:15with the legal categories
28:17uh in the common law system and we will
28:21see
28:22uh
28:23later a few more examples
28:27this positive thinking also shows you
28:30how the system is moving
28:33rather than thinking in terms of rights
28:36like we tend to do in the civil law
28:38tradition
28:40you are constantly whenever you have a
28:42problem or a dispute
28:45thinking
28:46what is the remedy to this case okay how
28:49can i bring the other party in court
28:52what sort of action do i have
28:55to you so remedies precede right
28:59and of course you can explain the common
29:02law system using the language of rights
29:05but the thinking is more in terms of
29:08remedies
29:09and you may say that when there is no
29:11remedy there is no right you have this
29:14obsession in the common law system about
29:19the judicial avenue you know if there is
29:22no way of making your point in court
29:25it's purely theoretical you know to say
29:29that you may have
29:30a right
29:32so
29:33access to
29:35justice to the court all this has a lot
29:38more importance in the civil law the
29:41civil laws are sort of obvious the
29:42moment you identify a right there should
29:45be a way you know of bringing the case
29:48to a court
29:53and as time went as this form
29:56specialized forms of actions have
29:59vanished or disappeared
30:01you see that the law will develop from
30:04precedent to precedent
30:08as
30:09maine in early common law and custom say
30:13substantive law emerged from the forms
30:15of action it it has been secreted in the
30:19institutions of procedural law whenever
30:22you read these old cases they're very
30:25hard to understand because
30:28ninety percent of the
30:30discussion is about procedure and very
30:32little about substance
30:37so though we have abolished these old
30:40rates they shaped the modern concept
30:43as
30:44alluded to regarding to thoughts
30:48and you will see also in the law of
30:50contract but we will revisit that
30:53example in another video
30:57in order to use the writ of a subset
31:00that was the contractual action created
31:02in the 16th century you had to prove
31:05that there was an agreement but that
31:07this agreement is supported by
31:11consideration otherwise you do not have
31:13a contract these were actually the
31:16requirements as they appeared in the
31:19writ of a sunset
31:23i will finish with a few uh visuals
31:27uh
31:28here you have a depiction of the your
31:31books which are the ancestors
31:34to the law reports that have been
31:37published from the 16th and 17th century
31:40onwards originally
31:42future lawyers apprentices who were
31:46following their masters in court were
31:48taking notes and the best notes were
31:51published in your books that were
31:54written in
31:56old french or law french as we call it
32:00very difficult to read for someone who
32:02does not
32:03know french
32:11for me french i can make sense of this
32:14uh carriladi primo deliberatum before
32:18the deliberation you have a mix of
32:20french and latin it's extremely
32:23difficult for legal historians who knew
32:25only english and the good news is that a
32:28good friend of mine who is professor of
32:30legal history at boston university
32:33professor david's site has re-translated
32:36all these your books
32:38and presented them on a website and he's
32:42you using
32:43modern
32:45language
32:46um
32:48you will see many examples of law french
32:51or words that come from the french
32:52language now you will say but professor
32:55y french well don't forget that normandy
32:58was part of france and when william came
33:01from normandy to england he spoke
33:04french
33:05and
33:07during the first centuries the norman
33:11dynasty the planter jeanette as they
33:14were called then
33:16were speaking french in their court it's
33:19only after
33:21the 100-year war when
33:24the english lost control of the western
33:28part of france because actually the
33:30british nobility was spending more time
33:32in france than in england that the use
33:35of french has been on the decline and
33:37that the english language developed but
33:40so many terms are still used uh when you
33:44start um
33:46hearing in the supreme us supreme court
33:49you will hear or ye or
33:51which means here here here you know the
33:54court is in session the court sits obama
33:57which means in it's the french for
34:00bench the word tort comes from the
34:02french it's the french word for tor
34:04thought
34:08you have in the law property concept
34:10like profies approach when you have the
34:13right to
34:14take
34:16benefit
34:17uh to hunt for example on someone else's
34:21land you have estates for ultra v which
34:24means for another life or another word
34:27that i like
34:29the doctrine of estoppel is named after
34:32etup which was sort of rough cutting
34:35that you were using to plug a leak
34:38and you stop
34:40the leak to happen hence the word
34:42estoppel
34:45uh
34:47this
34:48slides are showing you the ends of court
34:52that have been so important and
34:54essential
34:55in the training of the lawyers from the
34:58middle ages till to this day you cannot
35:02become a barrister in england if you are
35:06not a member of an in of court and they
35:09have been the sort of ancestors to
35:12the law schools and another video is
35:16taking you to this world of the ins of
35:19courts but i wanted you to have a peek
35:22and see
35:22what they look like beautiful medieval
35:26building and even nowadays
35:28barristers who plead the most important
35:31cases in the central courts based in
35:33london have their chambers in their in
35:36in the inns of court and yes they still
35:40wear the wig
35:43the united states try to emit a little
35:46bit the inns of court we have been of
35:48course in the u.s this sort of club
35:51of the best jurist and the best among
35:54you
35:55may be invited to join the inn of court
35:59at
36:01in the course of your third year
36:05this is the end of this presentation i
36:08will meet you again in a discussion of
36:11common law and equity
36:14thank you for your attention

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