History-Common Law-Australia PDF

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History-Common LawAustralia History and Common Law Anglo-Saxon 5c Roman leave. Germanic tribes invade England Angles, Saxons and Jutes) Shire Moots and Hundred Moots Hundred was a secular district within the shire) Accusation and Proof Wager of law Also called compurgation or oath-helping. Was a defence used primarily in medieval law. A defendant could establish his innocence or non-liability by taking an oath and by getting a required number of persons, typically 12, to swear they believed the defendant's oath. Trial by Ordeal: fire, water, corsnaed Outlaw: out of the legal system Compensation (later) Bots for injury Wer for death The Norman William' the Conqueror 1066 11c 1066 defeated Harold Godwinson at battle of Hastings Feudalism 915c Europe the king makes the laws and owns all the land) (nobility provide military service in exchange for land) Absolute beneficial title: ownership of land

Sovereignty: the ability to make law However, William leave most of the laws as they were) Doctrine of Reception Conquest: laws stay the same (until the ruler decides to change) Settlement/Terra nullius: new laws (bring your own laws to the new land) Treaty/ Cession: Blend of laws Henry II 11541189 (the 1st Plantagenet king) New system of Common Law: Laws for everyone King's Council: Curia Regis Justiciars (judges) Travelling or Circuit Courts: General Eyre and Assizes Assize of Clarendon 1166 12 freemen from the hundred and 4 from the town, Introducing trial by juries for the first time Other existing courts: Manorial courts, Church or Ecclesiastical courts, and Forest Courts Henry II vs. The church courts Thomas A'Beckett "The benefit of the clergy": any clergyman would be tried by Church courts and not by common law eventually brought the church under the rules of the civil courts ? introduced the law that no man can be tried for the same offence twice. John Lackland 11191216 1215 Magna Carta Great Contract) Peace Treaty between the king and the barrens it puts limits on the power of the king King cannot trial anyone without the use of law

No. 39 No freeman shall be taken or imprisoned or dispossessed or outlawed or exiled or in any way destroyed... unless by the lawful judgment of his peers, or by the law of the land Henry III 12161272 1264 Parlement Simon de Montfort) the King was captured during a civil war and was forced to set up a 'Parlement.' Men from all over England came together to make decisions Edward I 12721307 Edward 'Longshanks' (so called because he was over 6ft tall) Killed Simon de Montfort Edward formed the Model Parliament in 1295, bringing together the knights from every shire, clergy, nobility and burgesses(leading officials from every town) of the cities, bringing Lords and Commons together for the first time. First legally elected legislature Split the Curia Regis into: Court of Exchequer: taxation/ revenue Court of Common Pleas: civil actions (which didn't involve the king) Court of King's Bench: crime Remaining Council functions split into King's Council later Concilium Regis, and then Privy Council

by the beginning of 14th cenury... Common law Parliament professional judges of common law established courts and bureaucacy writs issued to commemce proceedings doctrine of precedence/stare decisis: judges must adhere to decisions already made 15c: Wars of the Rose: nobles lose power (14551485 ) Increasing professionalism within the law-apprenticeships to the legal profession Inns of Court-middle/inner/gray's/lincoln's inn Barristers-inner/outer bar Attorneys did the paperwork. Sergeant did the oral work. Outside of Common Pleas, new professions begin to develop-eg conveyancing and 'solicit' for work with barristers 16c: Collapse of Papal power in England (the modern Tudor state) 15091547 Henry VIII broke away from the Church in Rome MaryI 15531558

Tried to reverse the English Reformation and return the Church to Rome Elizabeth I 15581603 The Religious Settlement (established her as head of the English Church) 17c: further reforms Prerogative Courts Court of Sar Chamber: part of curia regis, people tried in secret, abolished in 17c Court of High Commision: the king would trial the priests (look at the immorality) Crimainal and Civil jurisdicion: court of criminal equity Court of Requests: paupers' equity Office of the Lord High Chancellor Around since Norman times Keeper of the King's Conscience The person appointed as Keeper of the King's Conscience was usually a bishop. He was responsible for overseeing the international affairs of the monarchy and for delivering justice on behalf of the king. Today this position has become the Lord Chancellor. Cleric and Keeper of the Great Seal, Member of Lords, Judges a seal that is used to symbolise the Sovereign's approval of state documents Chancery as Court Chancery as Court The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the estates of lunatics and the guardianship of infants.

People appealed to the Lord Chancellor to repair the failings of Common Law Principles of Christian fairness 2 streams- Common Law and Equity The Stewart disaster 1603 The Case of Prohibitions where Edward Coke, Lord Chief Justice, overruled a decision of King James I (from Scotland) Training in the law gives artificial reason of the common law. Those trained in the law should make the decisions 1610 Dr. Bonham's case-confict between courts and Parliament where it was decided that common law can overturn unjust laws (not so popular in the UK and AU tho) Charles I 16251649 absence of commmon law civil war/regivide of Charles I Commonwealth under Lord Cromwell 16591660 existing legal systems and common law survived Restoration of Charles II 164916451 James II-forced to abdicate as he was Catholic Glorious Revolution Mary and William of Orange 1687 Bill of Rights limited their power 1701 Act of Settlement states that Kings of England must be Anglican 18c: 3 sources of law in the England Legal System Legislation-made by Parlement King can make laws through parliament Parliamentary sovereignty-that Parliament can make laws on any topic

Common Law- from the courts Equity- Lord Chancellor's jurisdicion The Rule of Law Certainty-clear and easy to understand Generality-the law should apply equally to everyone Equality-that sometimes people need to be treated differently to be fair Common Law in Aurstalia Jan 26, 1788. First Fleet arrives in colony of New South Wales Reception of English Law a conquered colony (where the local laws would not be changed until the soveriegn deceided to do so); or a settled colony (terra nulluis-empty land); or a cession where the colonists and indigenous people enter into the treaty The position of the colony in NSW was unclear as the land was not empty, but there was no declaration of war and no official traties were entered into Indigenous Australians 18c original instruction to the English were not ot disturb Indigenous peoples Early decisions recognised the existence of Aboriginal law but English law was applied in disputes between indignous people and the English out of necessity and to minimize violence. R v Murrell and Bummaree 1836 1 Legge 72 the NSW Supreme changed its view and said that Indigenous people did not have laws as they were not civilised. Later in R v Bonjon 1841 NSWSupC 92, one judge was prepared to recognised Indigenous law and property rights but his dicision was ignored and forgotten, until it was rediscovered in 1998.

It was until Mabo's case 1992 175 CLR 1, that the High Court recognised the land rights of Indigenous people. However, this case does not recognise the sovereignty of Indigenous peoples, which requires a treaty. The Australian Court Prior to 1810 criminal and civil courts run by military officers 1810 first civilian judge arrived judiciary not separarte from other branches of executive; executive and legislature trials were conducted by the military and not by jury of peers New South Wales Act 1823 Laws of England apply in NSW-this is how common law came to be used in Australia Partial agreement of private laws to be implemented in Australian colony Supreme Court of New South Wales established 1824 Judges now had 'like jusrisdiction and authority in NSW... as judges of the courts of King's Bench, Common Pleas and Exchequer in England'...