English Exports: Invoking the Common Law of Marriage across the Empire in the Nineteenth Century

2017 ◽  
Keyword(s):  
Nineteenth Century ◽  
Common Law ◽  
The Common

Law Making

2019 ◽  
pp. 206-238
Author(s):  
John Baker
Keyword(s):  
Nineteenth Century ◽  
Common Law ◽  
Case Law ◽  
Symbiotic Relationship ◽  
Legal Change ◽  
Inns Of Court ◽  
History Of ◽  
The Common ◽  
Common Learning ◽  
Law Making

This chapter examines the history of case-law, legislation, and equity, with particular reference to legal change. The common law was evidenced by judicial precedent, but single decisions were not binding until the nineteenth century. It was also rooted in professional understanding, the ‘common learning’ acquired in the inns of court. It was based on ‘reason’, operating within a rigid procedural framework. Legal change could be effected by fictions, equity, and legislation, but (except during the Interregnum) there was little systematic reform before the nineteenth century. Legislation was external to the common law, but it had to be interpreted by common-law judges and so there was a symbiotic relationship between statute-law and case-law. Codification has sometimes been proposed, but with limited effect.

The Authority of the Administration

2020 ◽  
pp. 45-66
Author(s):  
Janet McLean
Keyword(s):  
Nineteenth Century ◽  
Eighteenth Century ◽  
Seventeenth Century ◽  
Common Law ◽  
Radical Change ◽  
Public Trust ◽  
Administrative Law ◽  
Legitimate Authority ◽  
The Common ◽  
Theoretical Foundations

The authority claims of the administration have undergone radical change with consequences for the shape and content of administrative law. In the seventeenth century, authority was claimed in office, as a means to limit the imposition of the King’s will and to secure the independence of officials, especially the judges. In the eighteenth century, virtue, property, and independence became the basis for office, and the common law sought to enhance such authority through notions of public trust. After the nineteenth-century transition to more centralised and bureaucratic hierarchy, democracy became the new source of authority for the administration, reinforced by the ultra vires doctrine. In each era, the authority claims of the administration have been reflected in the frameworks for judicial supervision. In this way the common law has simultaneously constituted and controlled authority. In the present day we are in the process of rethinking whence administrators derive their legitimate authority and the theoretical foundations of judicial review. Beginning with the authority claims of the administration and framing a juridical response which reflects and tests such claims would be a good place to start.

The Chartists and the Constitution: Revisiting British Popular Constitutionalism

2017 ◽  
Vol 56 (1) ◽  
pp. 70-90 ◽  
Author(s):  
Josh Gibson
Keyword(s):  
Nineteenth Century ◽  
Natural Law ◽  
Political Development ◽  
Common Law ◽  
The Past ◽  
The Common ◽  
Fundamental Law ◽  
English Law ◽  
Scholarly Attention ◽  
Popular Constitutionalism

AbstractDespite having a powerful influence on the historiography of radicalism and nineteenth-century politics for the past several decades, the language of the constitution has not recently received scholarly attention. In Chartist and radical historiography, the constitution is usually treated as a narrative of national political development. This article extends the horizons of Chartist constitutionalism by exploring its similarities with American constitutionalism. By doing so, it also opens up questions regarding the ideas of the movement. Like the Americans sixty years before, the Chartists were confronted by a parliament that they believed had superseded its constitutional authority. This perception was informed by a belief that the constitution rested on the authority of the fixed principles of fundamental law, which they argued placed limits beyond which Parliament had no power to reach. As a result, the Chartists imagined that the British constitution functioned like a written constitution. To support this claim, they drew on a sophisticated interpretation of English law that argued that the common law was closely related to natural law.

‘Furiously Mad’: Vagrancy Law and a Sub-Group of the Disorderly Poor

Rural History ◽  
2013 ◽  
Vol 24 (1) ◽  
pp. 25-40 ◽  
Author(s):  
AUDREY ECCLES
Keyword(s):  
Nineteenth Century ◽  
Eighteenth Century ◽  
Social Problem ◽  
Common Law ◽  
Medical Texts ◽  
The Public ◽  
Course Of Action ◽  
The Subject ◽  
The Common ◽  
The Law

Abstract:Madness has been a social problem from time immemorial. Wealthy lunatics were made royal wards so that their estates would be looked after, and the common law very early admitted madness and idiocy as conditions justifying the exemption of the sufferer from punishments for crime. But the vast majority of lunatics have never been either criminal or wealthy, and many wandered about begging, unwelcome in any settled community. Finally, in the eighteenth century, the law made some attempt to determine a course of action which would protect the public and theoretically also the lunatic. This legislation and its application in practice to protect the public, contain the lunatic, and deal with the nuisance caused by those ‘disordered in their senses’, form the subject of this article. Much has been written about the development of psychiatry, mainly from contemporary medical texts, and about the treatment of lunatics in institutions, chiefly from nineteenth-century sources, but much remains to be discovered from archival sources about the practicalities of dealing with lunatics at parish level, particularly how they were defined as lunatics, who made such decisions, and how they were treated in homes and workhouses.

Crime and Punishment

2019 ◽  
pp. 551-590
Author(s):  
Lawrence M. Friedman
Keyword(s):  
Nineteenth Century ◽  
Criminal Law ◽  
Common Law ◽  
State Level ◽  
Late Nineteenth Century ◽  
Federal Law ◽  
Crime And Punishment ◽  
Penal Codes ◽  
The Common ◽  
Late Nineteenth

This chapter discusses the development of criminal law in the second half of the nineteenth century, covering the statute law of crimes, crime rates, insanity, punishment and correction, and victimless crimes. The formal criminal law in the late nineteenth century was by and large a matter of statute. The concept of the common-law crime had been wiped out in federal law. The concept also decayed on the state level. As of 1900, some states still technically recognized the possibility of a common-law crime. Other states, by statute, had specifically abolished the concept. Only acts listed in the penal code were crimes, and nothing else. In some states, the courts construed their penal codes as (silently) abolishing common-law crime. Where the concept survived, it was hardly ever used; the penal codes were as a practical matter complete and exclusive—the total catalog of crime.

11. Special Liability Regimes

2017 ◽  
Author(s):  
Mark Lunney ◽  
Donal Nolan ◽  
Ken Oliphant
Keyword(s):  
Nineteenth Century ◽  
Consumer Protection ◽  
Common Law ◽  
Final Part ◽  
Consumer Protection Act ◽  
Statutory Duty ◽  
The Common ◽  
The Law

Although much of the law of tort is based upon general common law principles, there are a number of situations where special liability regimes have been created. This chapter focuses on four of these special liability regimes. The first regime to be considered is employers’ liability, whose origins lie in nineteenth-century common law. Two other special regimes are then considered: the liability of occupiers to those coming onto their land (governed by the Occupiers’ Liability Acts of 1957 and 1984) and liability in respect of defective products (governed by the Consumer Protection Act 1987). In both these areas Parliament has intervened to remedy perceived failings in the common law. The final part of this chapter considers the common law action for breach of statutory duty. This differs from the action for negligence in that the source of the defendant’s duty is not the common law; rather, the claimant’s case is founded on a breach of a duty imposed on the defendant by Parliament.

The New Rules of Pleading of the Hilary Term, 1834

1923 ◽  
Vol 1 (3) ◽  
pp. 261-278
Author(s):  
W. S. Holdsworth
Keyword(s):  
Nineteenth Century ◽  
Common Law ◽  
Law System ◽  
Indirect Influence ◽  
General Rules ◽  
The Common ◽  
Common Law System ◽  
Substantive Law ◽  
New System

The old system of pleading has passed so completely into the limbo of things forgotten that the title of this paper is not intelligible without an explanation. I must, therefore, remind the reader that, in pursuance of the Second Report of the Common Law Procedure Commissioners, which was issued in 1830, the Judges made some new general rules as to pleading in the Hilary Term of 1834 which, on the whole, tended to aggravate the existing evils of the common law system of special pleading, by making special pleading compulsory where it had before been only optional. Something was done to alleviate these evils by the Common Law Procedure Acts of 1852, 1854, and 1860; but they were not wholly eliminated till the new system of procedure and pleading introduced by the Judicature Acts. The result was that right down to the Judicature Acts the system of pleading was the old system; and, subject to the modifications introduced by the Common Law Procedure Acts, the old system aggravated by the new pleading rules of the Hilary Term, 1834. Now it seems to me that there are certain developments in common law doctrine in the nineteenth century which may in part, at least, be traced to the indirect influence of these new pleading rules. But it is obvious that before I can even state my thesis I must explain some of the characteristics of the old system of special pleading, and the effect of these new pleading rules. I shall therefore divide this paper into these three parts, and deal firstly with certain characteristics of the old system of special pleading; secondly, with the new pleading rules of the Hilary Term, 1834; and thirdly, with the question of their effect on the development of the substantive law.

Bentham, Bacon and the Movement for the Reform of English Law Reporting

Utilitas ◽  
1992 ◽  
Vol 4 (2) ◽  
pp. 299-316 ◽  
Author(s):  
Roderick Munday
Keyword(s):  
Nineteenth Century ◽  
Common Law ◽  
Case Law ◽  
Rational System ◽  
The Common ◽  
English Law ◽  
Law Reports ◽  
Variable Quality

The disordered state of English law reporting has for long been a favoured theme of writers on the common law. The volume of printed case law, the casual nature of its publication and its variable quality have all been frequently criticized. If earlier centuries had been largely content to express intermittent displeasure, in the nineteenth century concrete solutions were found, the obvious product of this bid to achieve a rational system of law reporting being the Incorporated Council of Law Reporting and its authoritative series of Law Reports. But if ultimately reform of the system was only realized once the profession seized the initiative in the middle of the nineteenth century, it would be an error to suppose that schemes for reform had not been conceived in earlier times. After all, only by a miracle could anything as blatantly haphazard as the quality of law reporting have escaped the strictures of major reformers.

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