THE COMMON LAW OF ENGLAND and its Origins
(The common law of England and the Common Law of the United States
are essentially the same)
COMMON LAW, like" civil law," a phrase with many shades of meaning, and probably best defined with reference to the various things to which it is opposed. It is contrasted with statute law, as law not promulgated by the sovereign body; with equity, as the law prevailing between man and man, unless when the court of chancery assumed jurisdiction; and with local or customary law, as the general law for the whole realm, tolerating variations in certain districts and under certain conditions. it is also sometimes contrasted with civil, or canon, or international law, which are foreign systems recognized in certain special courts only and within. limits defined by the common law. As against all these contrasted kinds of law, it may be described broadly as the universal law of the realm, which applies wherever they have not been introduced, and which is supposed to have a principle for every possible case. Occasionally, it would appear to be used in a sense which would exclude the law developed by at all events the more modern decisions of the courts.
Blackstone (William Blackstone) divides the civil law of England into lex scripla or statute law, and lex non scripta or common law. The latter, he says, consists of (I) general customs, which are the common law strictly so called, (2) particular customs prevailing in certain districts, and (3) laws used in particular courts. The first is the law by which "proceedings and determinations in the king’s ordinary courts of justice are guided and directed." That the eldest son alone is heir to his ancestor, that a deed is of no validity unless sealed and delivered, that wills shall be construed more favourably and deeds more strictly, are examples of common law doctrines," not set down in any written statute or ordinance, but depending on immemorial usage for their support." The validity of these usages is to be determined by the judges—" the depositaries of the law, the living oracles who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land." Their judgments are preserved as records, and "it is an established rule to abide by former precedents where the same points come again in litigation." The extraordinary deference paid to precedents is the source of the most striking peculiarities of the English common law.
There can be little doubt that it was the rigid adherence of the common law courts to established precedent which caused the rise of an independent tribunal administering justice on more equitable’ principles—the tribunal of the chancellor, the court of chancery. And the old common law courts—the king’s bench, common pleas and exchequer—were always, as compared with the court’ of chancery, distinguished for a certain narrowness and technicality of reasoning.
At the same time the common law was never a totally fixed or rigid system. In the application of old precedents to the changing circumstances of society, and in the development of new principles to meet new cases, the common law courts displayed an immense amount of subtlety and ingenuity, and a great deal of sound sense. The continuity of the system was not less remarkable than its elasticity. Two great defects of form long disfigured the English law. One was the separation of common law and equity. The Judicature Act of 1873 remedied this by merging the jurisdiction of all the courts in one supreme court, and causing equitable principles to prevail over those of the common law where they differ. The other is the overwhelming mass of precedents in which the law is embedded. This can only be removed by some well-conceived scheme of the nature of a code or digest; to, some extent this difficulty has been overcome by such acts as the Bills of Exchange Act 1882, the Partnership Act 1890 and the Sale of Goods Act 1893.
The English common law may be described as a pre-éminently national system. Based on Saxon customs, moulded by Norman lawyers, and jealous of foreign systems, it is, as Bacon says, as mixed as the English language and as truly national. And like the language, it has been taken into other English-speaking countries, and is the foundation of the law in the United States.
Source: Ency Brit – 1910
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(For those who really want to know)
MANDAMUS, WRIT OF, in English law, a high prerogative writ issuing from the High Court of Justice (named from the first word in the Latin form of the writ) containing a command in the name of the king, directed to inferior courts, corporations, or individuals, ordering them to do a specific act within the duty of their office, or which they are bound by statute to do, and performance whereof the applicant for the writ has a specific legal right to enforce. Direct orders from the sovereign to subjects commanding the performance of particular acts were common in early times, and to this class of orders mandamus originally belonged. It became customary for the court of king’s bench, in cases where a legal duty was established but no sufficient means existed for enforcing it, to order performance by this writ. Under the Judicature Acts and the Crown Office Rules, 1906 (ri 49), the powers of the court of king’s bench as to the grant of the prerogative writ of mandamus are exercisable only in the king’s bench division of the High Court.
The writ though of right is not of course: i.e. the applicant cannot have it merely for the’ asking, but must satisfy the High Court that circumstances exist calling for its issue. The procedure regulating the grant and enforcement of the writ is determined by the Crown Office Rules, 1906 (rr. 49—68, 125).
Mandamus has always been regarded as an exceptional remedy to supplement the deficiencies of the common law, or defects of justice. Where another legal or equitable remedy exists, equally appropriate, convenient, speedy, beneficial and effectual, the ,writ will as a rule be refused. It is occasionally granted even when a remedy by indictment is available: but is not issued unlessthe existence of the duty and refusal to perform it are clearly established, nor where performance in fact has become impossible. The writ is used to compel inferior courts to hear and determine according to law cases within their jurisdiction, e.g. where a county court or justices in petty or quarter sessions refuse to assume a jurisdiction which they possess to deal with a matter brought before them. It has in recent years been employed to compel municipal bodies to discharge their duties as to providing proper sewerage for’their districts and to compel anti-vaccinationist guardians of the poor to appoint officers for the execution of the Vaccination Acts; and it is also employed to compel the promoters of railway and similar undertakings to discharge duties imposed upon them towards the public by their special acts, e.g. with reference to highways, &c., affected by their railways or other undertakings. The courts do not prescribe the specific manner in which the duty is to be discharged, but do not stay their hands until substantial compliance is established. -
Besides the prerogative common-law writ there are a number of orders, made
by the High Court under statutory authority, and described as or as being in the
nature of mandamus, eg. mandamus to proceed to the election of a corporate
officer of a municipal corporation (Municipal Corporations Act 1882, 8. 225);
orders in the nature of mandamus to justices to hear and determine a matter
within their jurisdiction, or to state and sign a case under the enactments
relating to special cases.
At common law mandamus lies only for the performance of acts of a public or official character. The enforcement of merely private obligations, such as those arising from contracts, is not within its scope. By s. 68 of the Common Law Procedure Act 1854, the plaintiff in any action other than replevin and ejectment was empowered to claim a writ of mandamus to compel the defendant to fulfil a
duty in the fulfilment of which the plaintiff was personally interested. By s. 25 (8) of the Judicature Act 1873 a mandamus may be granted by an interlocutory order of the High Court in all cases in which it shall appear to the court just or convenient that such an order should be made. This enactment does not deal with the prerogative mandamus but empowers the king’s bench and the chancery divisions to grant an interlocutory mandamus in any pending cause or matter by an order other than the final judgment and even by an order made after the judgment. S. 68 of the act of 1854 has been repealed and replaced by Order LIII. of the Rules of the Supreme Court. The remedy thus created is an attempt to engraft upon the old common law remedy by damages a right in the nature of specific performance of the duty in question. It is not limited to cases in which the prerogative writ would be granted; but mandamus is not granted when the result desired can be obtained by some remedy equally convenient, beneficial and effective, or a particular and different remedy is provided by statute. An action for mandamus does not lie against judicial officers such as justices. The mandamus issued in the act~on is, no longer a writ of mandamus, but a judgment or order having effect equivalent to the writ formerly used.
Mandatory Injunction.—The High Court has a jurisdiction derived from the court of chancery to grant injunctions at the suit of the attorney-general or of private persons. Ordinarily these injunctions are in the form of prohibition or restraint and not of command. But occasionally mandatory injunctions are granted in the form of a direct command by the court.
Specific Performance.—The jurisdiction of the High Court, derived from the court of chancery, to decree specific performance of contracts has some resemblance to mandamus in the domains of public or quasi-public law.
Ireland .—The law of Ireland as to mandamus is derived from that of England, and differs therefrom only in minor details.
British Fossessions.—In a British possession the power to issue the prerogative writ is usually vested in the Supreme Court by its charter or by local legislation.
United States.—The writ has passed into the law of the United States. "There is in the federal judiciary an employment of the writ substantially as the old prerogative writ in the king’s bench practice, also as a mode of exercising appellate jurisdiction, also as a proceeding ancillary to a judgment previously rendered, in exercise of original jurisdiction, as when a circuit court having rendered a judgment against a county issues a mandamus requiring its officers tolevya tax to provide for the payment of the judgment." And in the various states mandamus is used under varying regulations, mandate being in some cases substituted as the name of the proceeding.
Source: Ency Brit. 1910
Don’t you know all of the money that has been spent to convince you that history is boring and irrelevant and has no bearing on your life ? The truth is the exact opposite, of course
Final
battle in the war
for the West?
Result
of property fight could spell end to ranching on federal land
May 6 - 2004- WND-
The little-known U.S. Court of Federal Claims has set up shop in Reno, Nev., to
hear what may be the final phase of a 13-year legal battle between Wayne Hage
and the federal government, the result of which will either send seismic
shockwaves through the government and the environmental community or signal the
end of ranching and other resource use on federal land.
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