History of English

law

Examination papers
and Examiners’ reports

2002, 2003, 2004

LLB 2660012
History of English law

Examination paper 2004

Zones A and B

General remarks
The Examiners for History of English law were pleased to find this year that
their oft-repeated wish that candidates apply themselves to achieving more
than a minimal familiarity with the material required for the subject has had
some effect. Although there was a spread of achievement all were of a
competent standard and some individual answers were of good upper second
class quality.
The most popular questions were those on the jury, the Statute of Uses and
Lord Mansfield’s notion of moral consideration.
What follows are merely suggestions for approaches to be taken and in no
sense attempts to provide model answers.

Question 1
The origins of the jury in the use of the sworn inquest in Anglo-Saxon (and
Anglo-Danish) England may be noticed.
Some concentration on the events in the early years of Henry III’s reign when
the abolition of trial by ordeal precipitated a crisis in the operation of the
criminal justice system is required. This requires a short explanation of how
criminals were brought to trial by the early form of the Grand jury. It was a
small but significant step to turn to the body which had presented the
prisoner to ask whether he were really guilty or no. To explain further how it
was possible for a jury to fill the gap left by the abolition of the ordeal,
however, it is necessary to show how juries (or assizes) were already being
used to determine cases: the petty assizes of novel disseisin and mort
d’ancestor, the grand assize of the writ of right. A further refinement is to
notice that in the thirteenth century the majority of civil suits (debts,
covenants broken, etc.) were tried by wager of law (compurgation) or
showing a deed: it was only the development of the action of trespass as the
main vehicle for trying civil suits that made the jury the arbiter of these also.

Question 2
The obvious candidates for inclusion in an answer are:
i. the church courts, with a highly developed jurisdiction in family and
succession law but which also took cognisance of breach of promises
(assumpsit), breach of conscience (trusts) and invasion of privacy (slander).
ii. the conciliar courts, beginning with the courts of Admiralty and Chivalry
and going on in the late fifteenth century to the Council itself, especially
in its role as the Court of Star Chamber, operated with a much improved
procedure which challenged the mediaeval practices of the common law
courts. That they did not eventually succeed in surpassing the older
jurisdictions was a consequence of the success and eventual failure of the
seventeenth century revolution

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iii. the local courts, which continued to bear a considerable amount of

litigation, albeit varying in efficiency from place to place. The effect here
was essentially negative: their existence supported the maintenance into
modern times of an extraordinarily centralised common law system.

Question 3
The Year Books were the main records of discussion in the common law
courts from the late thirteenth down to the middle of the sixteenth century.
They report the arguments of counsel but not usually the conclusions of the
court. As such they reflect a world in which the lawyer’s task was to get issues
determined which could go before juries: once the pleadings were completed
the lawyers lost interest in the case. (An exception were cases which were
taken further on the basis of Error.)
From the late sixteenth century (Plowden, Coke) we have reports of a more
modern sort which concentrate on the conclusions of the judges, especially
in those cases finally determined by the court rather than the jury. These
reports mark a movement from an era in which procedure is dominant in the
lawyer’s conception of law towards one in which substantive solutions,
expressed in concrete rules, are the focus of interest.

Question 4
The main purpose of the Statute of Uses was to recover crown revenue from
feudal sources, diverted, whether intentionally or not, by the device of the
use, which enabled land to be passed across the generations without
attracting wardship or relief. In this aim, as has long been recognised, the
Statute was very successful.
It has been supposed that in other respects the drafting of the Statute was
defective because it came to be circumvented by such patent evasions as the
use upon a use. But recently Jones has shown that, so long as the crown’s
revenue was protected, the courts were happy to permit devices which
enabled the other benefits of the trust device to be maintained and even
extended. By contrast devices which sought, via long leases, to establish
further evasion of the revenue, were struck down even though they did not
fall within the ambit of the Statute.

Question 5
Before the nineteenth century the common law did not explicitly recognise
the possibility of appeal. This was in large measure due to the omniscience of
the jury: having succeeded in passing responsibility for the final decision to
laymen the judges were not anxious to take it back. There was from early
times one exception. If the record of the proceedings contained a manifest
error then it could be corrected – and if this meant setting the earlier
proceedings aside the consequence was similar to a successful appeal against
the earlier decision. But the notion of error was a narrow one: it did not
initially extend to mistakes and misunderstandings of the law which did not
produce fatal entries on the court roll. An early development enabled counsel
to request that judges write their controversial rulings into the record so as to
enable them to be challenged subsequently, the so-called bill of exceptions.
Error was eventually by-passed by devices such as the motion in arrest of
judgment, or for entry of judgment non obstante veredicto, which exploited
the procedural niceties of the nisi prius system. It was eventually replaced by
the nineteenth century establishment of an appellate tribunal.

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History of English law

Question 6
At a time when the Common law courts were not providing the main
remedies for commercial transactions, its main vehicle, the action of debt,
appeared to be deficient. Debt lay either on a contractual dealing or on a
bond (a deed). In debt sur contract the plaintiff had to show that he had
obtained quid pro quo, a form of consideration. A disadvantage was that trial
was by wager of law (compurgation) and the defendant would escape
liability if he could find enough friends to swear to his non-liability. In debt
on a bond the defendant was limited in the defences open to him if the
plaintiff produced the deed: non est factum (not his deed) was the most
certain. If the debt was conditioned, typically by a set of terms endorsed on
the bond reflecting the true bargain which restricted the operation of a penal
sum set out in the deed itself, then failure to show that the terms had been
met exposed the defendant to the penalty. Where the agreement between the
parties was enshrined in a deed to do other than pay money the action of
covenant lay but this was of disadvantage to the plaintiff in that even a late
fulfilment of the terms might lead a defendant to escape liability and to
defendants in the same way as debt on a simple bond.
Assumpsit was the term used for an action of trespass on the case, triable by
jury, which developed in the course of the sixteenth century as an alternative
to the action of debt (and covenant). The main advantage was that, being
tried by jury, there was an opportunity to set out the true basis of the dispute
in evidence. Whether trial by jury was freer from possibilities for interference
than wager of law is open to question.

Question 7
From its beginnings as a semi-criminal charge triable by jury at the suit of the
king, trespass came to be the basis for nearly all civil litigation by the
eighteenth century. This was in part due to its attractions – it was triable by
jury and was relatively efficient (for example as compared with the old
property actions it was speedy and confined the case to a single issue). But its
rise was assisted by the perceived deficiencies of the older remedies it
replaced – for example in Debt the availability of wager of law and in
Covenant the possibility of delayed performance.

Question 8
This calls for an analysis of Mansfield’s decision in Hawkes v Saunders (1782)
1 Cowp 289.
Consideration developed as a mechanism for actionability in contractual
claims in assumpsit during the sixteenth century. It was required because the
mere allegation of breach of promise was thought insufficient to ground a
claim for damage in the absence of a demonstration that the promise was
seriously meant. It replaced the quid pro quo of Debt and was not in fact so
very different being primarily commercial in nature.
There were some well established exceptions, perhaps affected by the use of
the term consideration in the very different context of trusts (uses) in the
Chancery. Simpson has argued that consideration in contract was originally
as broad as this, becoming subsequently narrowed despite Mansfield’s
rearguard action, but Ibbetson has shown that this is a mistake.
Consideration in contract was always relatively narrow and Mansfield was
not as revolutionary as he might appear.

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Question 9
The essential reason for the lack of development in the substantial law of
crimes is the fact that the prisoner or defendant was almost inevitably driven
to plead a general denial: not guilty. (There were some odd exceptions e.g. in
the pleas of autrefois acquit/convict.) The effect was to require the verdict of
the jury to combine consideration of both fact and law, for a long time
effectively hiding consideration of the legal requirements. From the sixteenth
century we are aware of judges’ directions to juries in criminal matters (and
more importantly in charges to the grand jury) but in the absence of any
appeal procedure other than error – rare in criminal cases apart from the
curious question of nomenclature, error on the ground of misdescription of
yeomen as gentlemen – this did not provide any basis for legal development.
Other than the various devices for avoiding the death penalty (benefit of
clergy, sanctuary, pardons and finally transportation) nothing changed until
from the early nineteenth century a mechanism (the Court for Crown Cases
Reserved) arose to consider tricky legal issues. But not until 1907 was the
defendant afforded an opportunity to appeal a jury verdict as of right.