Negligence

This chapter traces the history of negligence in tort. The role of fault in the action of trespass vi et armis is somewhat speculative, since the relevant facts were hidden from courts by the plea of Not Guilty. But the concept of inevitable accident seems to be predicated on negligence. Negligence is more visible in actions on the case, though the earliest examples were contractual in essence. The first signs of a distinct tort of negligence, where there was no contract or custom imposing liability, appear in the seventeenth century, and in the next century there emerges a general principle that everyone must take reasonable care not to injure his neighbour. The duty of care was gradually enlarged between the eighteenth century and the present, especially with the removal of obstacles connected with the principle volenti non fit injuria and with the old notion that trespass would not lie for words.

Contract

This chapter explores some lines of development in contract law after 1600. First there were questions flowing from the decision in Slade’s Case – the pleading formulae known as the ‘common counts’ in indebitatus assumpsit were quickly settled and the perjury problems after the disuse of wager of law were dealt with in the Statute of Frauds 1677. Attempts to rationalize consideration in the eighteenth century were unsuccessful save that it became distinct from the requirement of an intention to be bound. The chapter traces the history of privity of contract and of the various attempts to give remedies to third-party beneficiaries. It then discusses the implication of terms into contracts, the difference between conditions and warranties, exclusion clauses, and the problems occasioned by standard-form contracts.

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.

Legal Literature

This chapter surveys the development of English legal literature. It begins with the Latin treatises called Glanvill and Bracton, which by the end of the thirteenth century had given way to more accessible practical works in French. The most important of the new writings were the reports of real cases taken in court, the year books. The evolution of law reporting is traced, and there is an assessment of the changes in the Tudor period, particularly Plowden’s innovative Commentaries. The effect of printing is also considered. Access to case-law was at first primarily via abridgments rather than treatises, but Littleton’s student textbook on Tenures marked a new departure in the fifteenth century. Treatises of comparable importance to Littleton were few, but notable among legal authors were St German, Coke (also a major law reporter), Hale, and Blackstone.

Pleas of the Crown

This chapter traces the history of criminal procedure. The early ‘appeal’ of felony gave way to the indictment, a written presentment approved by a grand jury. Until Georgian times there were few safeguards for the accused other than whatever care was taken by judge and jury. Counsel were rarely involved, except in treason cases; trials were brief; and there were no appeals. The capital punishment imposed on all convicted felons was adjusted in practice by the mechanisms of sanctuary, benefit of clergy, ‘pious perjury’ by jurors, and pardons. Benefit of clergy was originally a privilege of ordained clergy, but the judges contrived to extend it to any man who could read, and Parliament perfected the fiction by extending it to women and the illiterate. Pardons were widely available underlay both the system of transportation and a form of criminal appeal.

Persons

This chapter, after some initial remarks about the legal status of women, aliens, and monks, is concerned with the history of personal liberty. Early law recognized the unfree status of villeins, but numerous means of escape brought villeinage to a de facto end by 1600. The law relating to imprisonment became controversial with the development of habeas corpus, relying on Magna Carta, as a remedy against arbitrary imprisonment under the royal prerogative. The controversy culminated in the debates on the liberty of the subject in 1628 and the Petition of Right. Religious freedom is considered next, beginning with the intolerant medieval heresy jurisdiction and its virtual extinction under Elizabeth I. But freedom of thought was not the same as freedom of worship, political expression, or assembly, which were constrained in various ways. The final section examines how far the English courts accepted black slavery, and how slavery was eventually abolished.

Defamation

This chapter addresses the history of the tort of defamation. Although early slander actions are found in manorial courts, the common law at first regarded defamation as beyond its purview and as more appropriate for ecclesiastical courts. But ecclesiastical courts could not deal with accusations of temporal crime or award damages. Soon after 1500 actions on the case were brought for damages caused by injury to reputation, not only by accusations of crime but also by accusations affecting a profession or calling. After some qualms, they could also be brought for spiritual matters, such as unchastity, provided temporal damage was shown. The actions proved embarrassingly popular, and the courts devised ways of deterring plaintiffs, in particular the artificial construction of words in the mildest possible sense (in mitiori sensu). The distinction between libel and slander is explained. Finally, there are observations on libel in printed publications.

Quasi-Contract

This chapter traces the history of what used to be called quasi-contract but is now part of the law of restitution. It was principally concerned with the receipt of money which belonged in justice to someone else. The earliest relevant action was account, at first limited to agents and then extended to all receivers of money; this was an impracticable action and went into disuse. Actions on the case came to the rescue, particularly the action for money had and received (a species of indebitatus assumpsit). The latter action was used not only in traditional cases of accountability but also where money was received by mistake or compulsion, where income from property was taken by an interloper, or where a party to a failed contract sought rescission. Much of the history is hidden from view by fictions, but Lord Mansfield declared a general principle based on the equity of the common law.

Real Property

This chapter is concerned with the history of settlements of land, the means whereby landowners could control the devolution of their real property in the future. The fee tail seemed at first to allow land to be tied to a family so long as it lasted, but means were found of ‘barring the entail’ by common recovery or final concord. Much confusion was caused by the operation of the Statutes of Uses and Wills on future interests, but the principal outcomes were the ‘executory interest’ and the legal power. Equitable interests also resurfaced in the form of trusts. Conveyancers sought to use the new statutory magic to create perpetuities, but eventually the courts struck down perpetuity clauses as contrary to public policy. The resulting doctrines were utilized to fashion the strict settlement, employed in most landed families for three centuries; its workings are here described.

The Legal Profession

This chapter traces the history of the English legal profession, which begins around 1200. From the start there was a distinction between advocacy and attorneyship. The pleaders in the Court of Common Pleas became around 1300 the order of serjeants at law, from whom the superior judges were chosen. A law school for ‘apprentices of the Bench’ in the thirteenth century was remodelled in the next century as a collegiate system, the inns of court and chancery, with its own learning exercises and degrees (bencher and barrister). Barristers practised as advocates, but not in the Common Pleas. In Tudor times solicitors appeared, as general practitioners. Serjeants lost their primacy to the newer rank of king’s counsel, but survived into Victorian times. Accounts are given of the judiciary and its independence, of the Civilian practitioners in Doctors’ Commons, and of the transfer of legal education to the universities.