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English Legal History: Intro to English Legal History

The Honorable Sir William Blackstone

Gainsborough, Thomas. "Portrait of William Blackstone (1723-1780)." Portrait. commons.wikimedia.org 25 May 2008. 3 March 2013. <http://commons.wikimedia.org>. {{PD-Art}}

Justice Blackstone - a prominent English jurist and Chief Justice of the Court of King's Bench - wrote one of England's most influential common law treatises. This treatise is known as Blackstone's Commentaries on the Laws of England. This treatise was first published in 1765. Blackstone's Commentaries are a great place for anyone to start researching English Legal History.

Professor Sir John H. Baker; Essential Materials

 

"Professor Sir John H. Baker, Cambridge Faculty Photo." Photo. law.cam.ac.uk 4 March 2013 <http://www.law.cam.ac.uk>.

Professor Sir John H. Baker, Q.C., LL.B., Ph.D. (Lond.), M.A., LL.D. (Cantab.), Hon. LL.D. (Chicago), F.B.A., is among the most prominent of English legal historians, and perhaps the most prominent alive today. Sir John H. Baker is a professor at the University of Cambridge, where he has held the position as the Downing Professor Emeritus of the Laws of England. 

Professor Baker has written many works analyzing the laws of England and their history. Among Professor Baker's many works, discussions, histories, and contributions there is one that stands out as especially helpful to a researcher just beginning to delve into this subject matter, An Introduction to English Legal History.This book discusses the laws and customs of early England, the origins of the common law, the court system, forms of actions and writs, pleading, proof, judicial review, interests in land, inheritance, contracts, torts, and much more. As a bonus to those unfamiliar with early English legal history, Professor Sir J.H. Baker takes the time to explain the meanings and context of the many confusing early legal concepts and terms. This book should be the first one an aspiring researcher picks up.

Essential Materials - Selden Society Publications

The Selden Society publications are of great importance for those researchers that need to find early English case reports. The Selden Society publishes many materials dealing with early English law, but one of the most important are their reporters. The reporters are organized both by date and by subject. The Selden Society will likely be your first stop (in the print resources) in locating early English cases. For more information, click on the "Print Resources" box and the "Online Resources (HeinOnline and EEBO)" box, located on the top of this LibGuide.

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Introduction

"British House of Commons, drawing from 1834." Picture. commons.wikimedia.org 18 Feb. 2006. 26 Feb. 2013 <http://commons.wikimedia.org>. {{PD-Art}}

This research guide will introduce you to the legal materials commonly used when researching early English legal history. While the United States, Scotland, Wales, Ireland, and even France may be discussed, this research guide focuses on early English law.

There are a number of differences between the English and American (United States) legal systems. Those differences are numerous, but there are two major differences that stand out (see below).

First Major Difference Between U.S. and English Law

First, England does not have a constitution - at least not as Americans (U.S.) understand it. This may confuse some at first because there is a concept of constitutional law in England. This concept, however, refers to the statutes, judicial decisions, royal decrees, etc... that make up the organization, formation, responsibilities, and limits of power for the English government. The early documents making up this concept include the Charter of Liberties (King Henry I - 1100 A.D.), the Magna Carta (King John of England - 1215 A.D. (not official law until 1225 A.D.)), and many more. These documents helped form the bedrock of England's - and her future colonies' - understanding of individual rights and limitations on the power of government.

The Charter of Liberties was issued by King Henry I upon his ascension to the throne. The charter addressed a number of abuses perpetrated by Henry's brother, the former king, William II. The charter bound the king to certain laws regarding the nobles, the church, and taxation. Additionally, the charter helped open the door for the Magna Carta. 

The Magna Carta was issued by King John of England in 1215 A.D. but was not official law until 1225 A.D. An amended version of the charter from 1297 A.D., "The Great Charter of the Liberties of England, and the Liberties of the Forest," is still "on the books" in England today. The Magna Carta was forced onto King John by the barons (high ranking nobles, which at that time had their own armies), in order to limit the power of the king and protect the liberties of English subjects. The Magna Carta addressed numerous issues, but perhaps its most important aspect was that it bound the king to the rule of law. This aspect removed from the kings of the England the authority to arbitrarily dispense their own version of justice.  The Magna Carta is one of the most influential documents in western history. It established the rule of law in England and her future colonies, laid the groundwork for future developments, and played an important role in the development of the U.S. Constitution

Second Major Difference Between U.S. and English Law

The second major difference between the English and American legal systems is the Doctrine of Judicial Review. In the United States the courts have an established authority to judicially review, and possibly invalidate, actions of both the legislative and executive branches. This doctrine is one of the features of the U.S. Constitution's separation of powers between three independent branches of government, each providing checks and balances on the other.

In England there is, to some degree, a concept of judicial review but nowhere to the same extent as in the United States. In England the doctrine of Parliamentary Supremacy dictates that acts of Parliament are inherently valid and not subject to judicial review for validity. However, in Dr. Bonham's Case, 8 Co. Rep. 114 (Court of Common Pleas (1610)) the court held, in the words of Justice Sir Edward Coke, "the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such Act to be void.” Scholars, attorneys, and judges have struggled to reconcile Bonham's Case with the doctrine of Parliamentary Supremacy. Regardless of Bonham's other implication's it did not solidly establish the concept of judicial review of parliamentary acts in England. Bonham's case did, however, serve as historical foundation for those authorities relied on by the U.S. Supreme Court's decision in Marbury v. Madison5 U.S. 137 (1803). This difference plays a major role in how the courts and legislatures of England and those of the United States operate, and, thus, where and how a researcher will find and examine materials.

Subject Guide

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