# Oldest English Common Law Cases **URL:** \ **Category:** Factual Questions\ **Created:** [August 11, 2004, 12:00am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284 "2004-08-11T00:00:00Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Kel\_Varnsen\_Latex\_Division](https://avatars.discourse-cdn.com/v4/letter/k/aeb1de/32.png) [@Kel\_Varnsen\_Latex\_Division](https://boards.straightdope.com/u/Kel_Varnsen_Latex_Division)\ **Post date:** [August 11, 2004, 12:00am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/1 "2004-08-11T00:00:00Z")
What is the oldest English common law case that is known? What is the oldest case we know the decision of? What is the oldest case that we have the written decision of? What is the oldest case that would be likely/possible to be cited by an English court? American court? ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [August 11, 2004, 12:48am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/2 "2004-08-11T00:48:47Z")
About 3800 years back. _Whiten v. Pilot Insurance Co._, [2002] 1 S.C.R. 595 at 41: > [@](#): > > Long before the days of Lord Pratt C.J., the related idea of condemning a defendant to a multiple of what is required for compensation (in the present [page620] appeal, as stated, the punitive damages were roughly triple the award of compensatory damages) reached back to the Code of Hammurabi, Babylonian law, Hittite law (1400 B.C.), the Hindu Code of Manu (200 B.C.), ancient Greek codes, the Ptolemaic law in Egypt and the Hebrew Covenant Code of Mosaic law (see Exodus 22:1 “If a man shall steal an ox, or a sheep, and kill it, or sell it; he shall restore five oxen for an ox, and four sheep for a sheep”). Roman law also included provisions for multiple damages. Admittedly, in these early systems, criminal law and civil law were not always clearly differentiated. The United States Supreme Court in BMW, supra, referred at p. 581 to “65 different enactments [in English statutes] during the period between 1275 and 1753 [that] provided for double, treble, or quadruple damages”. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [August 11, 2004, 1:18am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/3 "2004-08-11T01:18:24Z")
You might find this interesting: [http://www.fordham.edu/halsall/sbook-law.html#ENGLISH](http://www.fordham.edu/halsall/sbook-law.html#ENGLISH) LAW ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [August 11, 2004, 1:45am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/4 "2004-08-11T01:45:44Z")
And this too: [http://www.law.cam.ac.uk/resources\_history.php](http://www.law.cam.ac.uk/resources_history.php) ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 11, 2004, 5:37am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/5 "2004-08-11T05:37:36Z")
The [Selden Society](http://www.selden-society.qmw.ac.uk/) is dedicated to publishing historical materials on the development of the English law. The earliest period they cover in their reports of cases is the period from William I to Richard I, starting in 1066: > [@](#): > > Vol. 106, for 1990. ENGLISH LAWSUITS FROM WILLIAM I TO RICHARD I Vol.I. William I to Stephen. > > Edited by Professor R. C. VAN CAENEGEM, University of Ghent. 0 85423 168 4 > > This two-volume collection, previously announced as a new Placita Anglo-Normannica, brings together all significant accounts of lawsuits between 1066 and 1199, drawn from chronicles, charters and similar sources. It shows that the period before the formal limit of legal memory is by no means prehistoric, and provides the materials for an assessment of the institutional and procedural changes wrought in this period. I happen to have that volume on my shelves, and the very first “case” it reports is a chronicler’s account of a dispute between Ealdred, Archbishop of York, and one of the king’s sheriffs, who seized some of Ealdred’s goods from some of Ealfred’s servants. Ealdred promptly went to King William and lodged a complaint against the conduct of the sheriff. The case is dated between 25 December 1066 and 11 September 1069. I think that the earliest case I’ve cited in a legal opinion was a decision of the Court of Star Chamber during the Tudor period. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [August 11, 2004, 8:04pm UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/6 "2004-08-11T20:04:14Z")
I wish I could give a better cite of the details, but a TV movie I once saw quoted an old case in English law, and I was wondering if there really was such a case: In the TV movie _Against Her Will: An Incident in Baltimore_, Walter Matthau plays a lawyer named Harmon Cobb. In the 1950s, he is hired to try to get a young woman released from a state mental hospital. But the state cites sovereign immunity and claims it thus cannot be sued. So Cobb sets out to challenge sovereign immunity itself. He finds a judge with a fascination about medieval common-law precidents, and cites the case of an English king who was sued by an ecclesiastical court for damages, and who for political reasons had to admit liability. Rather than risk setting a precident for the overturning of sovereign immunity, the state releases the woman. ---
**Author:** ![barbitu8](https://avatars.discourse-cdn.com/v4/letter/b/839c29/32.png) [@barbitu8](https://boards.straightdope.com/u/barbitu8)\ **Post date:** [August 11, 2004, 9:14pm UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/7 "2004-08-11T21:14:32Z")
> [@Northern Piper](#): > > [A]nd the very first “case” it reports is a chronicler’s account of a dispute between Ealdred, Archbishop of York, and one of the king’s sheriffs, who seized some of Ealdred’s goods from some of Ealfred’s servants. Ealdred promptly went to King William and lodged a complaint against the conduct of the sheriff. The case is dated between 25 December 1066 and 11 September 1069. But that case was not decided by a judge. It was Henry II who united the kingdom from which “common law” evolved. From Muffin’s first cite: > [@](#): > > Note that the common law is designated “common” because it was a law common to all of England and administered by a central court, as distinguished from the customary law that varied, albeit often only in minor ways, from county to county, lordship to lordship, or manor to manor. Moreover, the common law began as the result of political occurrences, not from jurisprudential considerations… > > II.D. The Assize of Northampton, cc. 4-5 (1176) > > This is an assize (enactment) which instituted the assize (writ and legal action flowing from the writ) of mort d’ancestor. It is at this point that we can begin to speak of the common law. The writ of right was provided originally for only certain people in certain narrow circumstances. This enactment provided a broad access to the king’s court. Within three years there are many cases coming into the king’s court; in 1179 the king modifies certain procedures… ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [August 11, 2004, 9:38pm UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/8 "2004-08-11T21:38:04Z")
> [@Northern Piper](#): > > I think that the earliest case I’ve cited in a legal opinion was a decision of the Court of Star Chamber during the Tudor period. Can you remember any specifics of the citation or your opinion? ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [August 11, 2004, 9:44pm UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/9 "2004-08-11T21:44:42Z")
Quoted by **Northern Piper** : > [@](#): > > It shows that the period before the formal limit of legal memory is by no means prehistoric So what is the formal limit of legal memory? And what does that mean exactly? ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [August 11, 2004, 10:08pm UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/10 "2004-08-11T22:08:09Z")
From a search on the phrase “Time Immemorial”: > [@](#): > > In English law time immemorial means “a time before legal history, and beyond legal memory” so called; formerly an indefinite time, but in 1276 this time was fixed by statute as the year 1189, the beginning of the reign of King Richard I. Proof of unbroken possession or use of any right since that date made it unnecessary to establish the original grant. In 1832 the plan of dating legal memory from a fixed time was abandoned and the principle substituted that rights which had been enjoyed for full twenty years (or as against the crown thirty years) should not be liable to impeachment merely by proving that they had not been enjoyed before. Source: The public domain Webster’s Revised Unabridged Dictionary (1913) > > The Court of Chivalry is said to have defined the period before 1066 as “time immemorial” for the purposes of heraldry. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [August 11, 2004, 10:08pm UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/11 "2004-08-11T22:08:18Z")
> [@Northern Piper](#): > > I think that the earliest case I’ve cited in a legal opinion was a decision of the Court of Star Chamber during the Tudor period. cough_nerd_cough_lawnerd_coughcoughcough\*nerd!\*cough 😉😃 ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [August 11, 2004, 11:35pm UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/12 "2004-08-11T23:35:10Z")
> [@barbitu8](#): > > It was Henry II who united the kingdom from which “common law” evolved. If anyone happens to come across any references to Thomas de Colepeper, Recognitor of the Grand Assize, from that period, please inform me – he’s a direct ancestor of mine. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 12, 2004, 4:05am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/13 "2004-08-12T04:05:44Z")
> [@barbitu8](#): > > > [@Northern Piper](#): > > > > [A]nd the very first “case” it reports is a chronicler’s account of a dispute between Ealdred, Archbishop of York, and one of the king’s sheriffs, who seized some of Ealdred’s goods from some of Ealfred’s servants. Ealdred promptly went to King William and lodged a complaint against the conduct of the sheriff. The case is dated between 25 December 1066 and 11 September 1069. > > But that case was not decided by a judge. Sure it was. At that formative stage of the common law, the King was the fountain of justice, with supreme authority to do right. The Archbishop petitioned the King for justice, and got it. There’s a reason the oldest common law court was called the “King’s Bench” - because it was the court of the king, and kings themselves sat in judgment, deciding requests for justice from their subjects. ---
**Author:** ![Kel\_Varnsen\_Latex\_Division](https://avatars.discourse-cdn.com/v4/letter/k/aeb1de/32.png) [@Kel\_Varnsen\_Latex\_Division](https://boards.straightdope.com/u/Kel_Varnsen_Latex_Division)\ **Post date:** [August 12, 2004, 4:20am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/14 "2004-08-12T04:20:56Z")
Under the common law were not decisions by a judge considered the decision of the King/Queen? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 12, 2004, 10:13am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/15 "2004-08-12T10:13:28Z")
> [@barbitu8](#): > > It was Henry II who united the kingdom from which “common law” evolved. hmmm. I don’t think I’d agree that Henry II united the English kingdom - William I did a good job of imposing Norman feudalism on an already reasonably united Anglo-Saxon kingdom, which had gradually managed to re-incorporate the Danelaw under the A-S kings. As well, it’s difficult to date the beginnings of the common law precisely. Henry II’s institutional reforms certainly had a major impact, but he built on the pre-existing legal framework. However, I’d certainly agree that the period prior to Henry II’s time was a period of transition, as the editors of _English Lawsuits From William I To Richard I_ comment: > [@](#): > > The period under review was an age of transition between two clearly marked eras, that of ‘Anglo-Saxon England’ and that of the established common law. The Old-English kingdom had a clear individuality of its own and we can study its law in impressive collections of documents: charters, wills, writs, treatise, reports of lawsuits and above all the voluminous and unique serises of dooms, stretching over some five centuries. The thirteenth century, so admirably analysed by Maitland and Milsom, withnessed the undisputed ascendancy of the commmon law, the cornerstone of English law for many centuries, and described in a highly technical language in one of he great lawbooks of the Middle Ages, Bracton’s ‘Treatise on the Laws and Customs of England’. The intervening period, extending roughly from the Conquest to Glanvill’s treatise, **the first, modest exposition of the new law, was a sort of no man’s land between two great eras, where everything seemed possible.** The Norman occupation and the consequent feudal-military regime changed the face of England and put an end to the epoch of the Anglo-Saxon dooms. **It had, however, in no way destroyed everything the Old-English monarchy had built, but the old elements were fused with the new feudal customs and notions into an uneasy blend…** Certainly, Henry II’s role was crucial in directing the development of English law towards a common law for the entire kingdom (as opposed to the various regional _coutumes_ found in France), but his work built on the pre-existing “uneasy blend” of Old-English and Norman laws. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 12, 2004, 10:17am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/16 "2004-08-12T10:17:31Z")
> [@Kel Varnsen - Latex Division](#): > > Under the common law were not decisions by a judge considered the decision of the King/Queen? Well, not in a personal sense, but in the sense that the royal courts had their origins in the king delegating the decision-making power to the judges, and backing up their decisions with the force of royal authority. This sense of a personal decision by the king would likely only have applied in the early medieval period - as the courts became more firmly established and professionalised, I doubt that judgments would be seen as the personal decision of the king. As well, this would only apply to decisions of the royarl courts, not to the variety of other feudal and regional courts. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 12, 2004, 10:31am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/17 "2004-08-12T10:31:28Z")
> [@Derleth](#): > > Can you remember any specifics of the citation or your opinion? I don’t have it handy, but I’ll see if I can find it again. It was some time ago. Not in a legal opinion, but I think the earliest case I’ve cited in a legal article was a Scottish case from 1599: _Bruce v. Hamilton_, Court of Session, 1599 (unreported); discussed in Cooper, “The King versus the Court of Session” (1946), 58 Jurid. Rev. 83. I think the earliest English case I can recall citing in an article was _Prohibitions del Roy_ (1607), 12 Co. Rep. 63, 77 E.R. 1342. Both of these cases dealt with attempts by King James VI (I of England) attempting to exercise the royal prerogative of justice personally, and being told to butt out in no uncertain terms by the Scottish and English courts. From the same period, I’ve also cited _Earl of Oxford’s Case_ (1615), 21 E.R. 485 (Ch.), and _Jurisdiction of Court of Chancery Vindicated_ (1616), 21 E.R. 576, dealing with the priority of equity over the common law. > [@pravnik](#): > > cough_nerd_cough_lawnerd_coughcoughcough\*nerd!\*cough Nasty cough you’ve got, **pravnik**. I would prescibe a nice dose of Milsom, followed by some samplings of Blackstone. 😛 ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 13, 2004, 3:20am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/18 "2004-08-13T03:20:41Z")
> [@Derleth](#): > > > [@Northern Piper](#): > > > > I think that the earliest case I’ve cited in a legal opinion was a decision of the Court of Star Chamber during the Tudor period. > > Can you remember any specifics of the citation or your opinion? Found them. Two Star Chamber cases, in fact, but both from the early Stuart period, not the Tudor period: - _Sir Henry Fines’ Case_ (1623), Godb. 288, 78 E.R. 168 (Star Chamber): objection to witness testifying because of previous conviction for theft (which at common law was an absolute disqualification to testifying); witness had obtained a royal pardon; able to testify. - _Bennet v. Easedale_ (1626), Cro Car. 55, 79 E.R. 651 (Star Chamber): corrupt judge; had been convicted and barred from holding judicial office; later pardoned; issue was whether he could hold a new judicial office; Star Chamber, in consultation with the royal judges, concluded that the pardon removed the disability on holding judicial office. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [July 12, 2016, 10:08am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/19 "2016-07-12T10:08:20Z")
Although the zombie is so old that its approaching the age of the citations itself, I had occasion to cite [Heydon’s Case](http://www.bailii.org/ew/cases/EWHC/Exch/1584/J36.html) (1584) 76 637 today. When I returned to the office in the afternoon, I looked up the oldest cases I could find in on BAILII (The British and Irish Legal Information Institute). Its from 1028.[Sketon and His Tutor v Brown](http://www.bailii.org/scot/cases/ScotCS/1028/Mor1907800-028.html) [1028] Mor 7800. Scottish Court of Sessions. ---
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [July 12, 2016, 10:47am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/20 "2016-07-12T10:47:47Z")
> [@Northern\_Piper](#): > > hmmm. I don’t think I’d agree that Henry II united the English kingdom - William I did a good job of imposing Norman feudalism on an already reasonably united Anglo-Saxon kingdom, which had gradually managed to re-incorporate the Danelaw under the A-S kings. > > As well, it’s difficult to date the beginnings of the common law precisely. Henry II’s institutional reforms certainly had a major impact, but he built on the pre-existing legal framework. However, I’d certainly agree that the period prior to Henry II’s time was a period of transition, as the editors of _English Lawsuits From William I To Richard I_ comment:Certainly, Henry II’s role was crucial in directing the development of English law towards a common law for the entire kingdom (as opposed to the various regional _coutumes_ found in France), but his work built on the pre-existing “uneasy blend” of Old-English and Norman laws. Off-topic but didn’t Henry II introduce the first English constitution? A forerunner to the Magna Carta? [Next page](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284.md?page=2)