# 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:** 18\ **Page:** 2
**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:** [July 12, 2016, 12:21pm UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/21 "2016-07-12T12:21:56Z")
He enacted the Constitutions of Clarendon to restrict the power of the Church. I would say that was part of what we in retrospect was a law of a constitutional nature, but not a constitution as a stand-alone new document. England has never had a constitution of that sort, but rather an organic constitution built up from customs, common law and statutes. ---
**Author:** ![mascaroni](https://avatars.discourse-cdn.com/v4/letter/m/dc4da7/32.png) [@mascaroni](https://boards.straightdope.com/u/mascaroni)\ **Post date:** [July 12, 2016, 12:28pm UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/22 "2016-07-12T12:28:24Z")
> [@AK84](#): > > 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. Which part of the “English Common Law” didn’t you understand? Still interesting, though… ---
**Author:** ![Isilder](https://avatars.discourse-cdn.com/v4/letter/i/cc9497/32.png) [@Isilder](https://boards.straightdope.com/u/Isilder)\ **Post date:** [July 13, 2016, 3:14am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/23 "2016-07-13T03:14:57Z")
> [@mascaroni](#): > > Which part of the “English Common Law” didn’t you understand? A scottish case could be appealed in London, you are quibbling over whether the law had to be in the jurisdiction of England , rather than just in court in England. Besides the law appears very much redundant as it regards power of attorney of a foreigner, which would be clarified by more modern law. I know of a case in NSW that successfully used a King Cnut (to 1032 ?) law. The NSW criminal legislation changed to say that spousal privilege common law is deleted, and a spouse can, and in some cases must, give evidence against the accused. The King Cnut law was cited successfully to say that the spouse still had _immunity from prosecution_, even though the law (case law, common law or legislation) said that they _must_ report a crime, not conceal a crime ,etc. Many writeups of spousal privilege refer back to King Cnut’s law regarding privilege and immunity. ---
**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:** [July 13, 2016, 5:56am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/24 "2016-07-13T05:56:10Z")
> [@Isilder](#): > > A scottish case could be appealed in London… Not in 1028 it couldn’t. ---
**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:** [July 13, 2016, 8:49am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/25 "2016-07-13T08:49:30Z")
And it still couldn’t in 1628. [1068 was a typo.](https://books.google.ca/books?id=9bBKAQAAIAAJ&pg=PA4648&lpg=PA4648&dq=skelton+tutor+sessions&source=bl&ots=d-I2QDrh41&sig=m9y7QBeGWOj9pPGlZefsYa-l_vg&hl=en&sa=X&ved=0ahUKEwjapfTT_-_NAhUKpB4KHci6AkoQ6AEIRjAI#v=onepage&q=skelton%20tutor%20sessions&f=false) ---
**Author:** ![mascaroni](https://avatars.discourse-cdn.com/v4/letter/m/dc4da7/32.png) [@mascaroni](https://boards.straightdope.com/u/mascaroni)\ **Post date:** [July 14, 2016, 10:24am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/26 "2016-07-14T10:24:45Z")
> [@Isilder](#): > > A scottish case could be appealed in London, you are quibbling over whether the law had to be in the jurisdiction of England , rather than just in court in England. . I like to quibble. It’s a hobby of mine. I’d like to point out that, much as I dislike Scotland, the word “Scottish” should be capitalised. > [@](#): > > …I know of a case in NSW that successfully used a King Cnut (to 1032 ?) law… Where exactly in England is NSW? Northampton South West? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [July 14, 2016, 11:25am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/27 "2016-07-14T11:25:20Z")
Surely one only uses this type of ancient case law in a historical treatise or other scholarly work, right? I cannot imagine arguing to a local judge that my client had the legal right to do X because of a ruling of the Star Chamber court in 1511. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [July 14, 2016, 11:44am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/28 "2016-07-14T11:44:44Z")
> [@Muffin](#): > > And it still couldn’t in 1628. > > [1068 was a typo.](https://books.google.ca/books?id=9bBKAQAAIAAJ&pg=PA4648&lpg=PA4648&dq=skelton+tutor+sessions&source=bl&ots=d-I2QDrh41&sig=m9y7QBeGWOj9pPGlZefsYa-l_vg&hl=en&sa=X&ved=0ahUKEwjapfTT_-_NAhUKpB4KHci6AkoQ6AEIRjAI#v=onepage&q=skelton%20tutor%20sessions&f=false) :eek::dubious::mad: Bloody BAILII. [QUOTE=UltraVires] Surely one only uses this type of ancient case law in a historical treatise or other scholarly work, right? I cannot imagine arguing to a local judge that my client had the legal right to do X because of a ruling of the Star Chamber court in 1511. [/QUOTE] Yes, in everyday practice you won’t ordinarily cite such old case\*s. However, many of the very old cases lay down fundamental aspects of law (Bonhams Case, Judicial review), Case of Proclamations; No power except what is given by law, Earl of Oxfords Case; Equity to take precedence over Common Law), so before an Appellate forum you might cite them. - Why are all these cases from King James VI/I reign? ---
**Author:** ![slash2k](https://avatars.discourse-cdn.com/v4/letter/s/439d5e/32.png) [@slash2k](https://boards.straightdope.com/u/slash2k)\ **Post date:** [July 14, 2016, 4:50pm UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/29 "2016-07-14T16:50:48Z")
> [@UltraVires](#): > > Surely one only uses this type of ancient case law in a historical treatise or other scholarly work, right? I cannot imagine arguing to a local judge that my client had the legal right to do X because of a ruling of the Star Chamber court in 1511. The Indiana Court of Appeals decision in _Ankeny v. Governor of Indiana_ ([PDF](https://www.scribd.com/document/22488868/ANKENY-v-GOVERNOR-OF-THE-STATE-OF-INDIANA-APPEALS-COURT-OPINION-11120903)) (which was a “birther” case about Obama’s eligibility to be president) quoted part of the U.S. Supreme Court’s decision in _United States v. Wong Kim Ark_ (1898), itself quoting _Calvin’s Case_, decided by the Court of King’s Bench in 1608. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [July 15, 2016, 1:20am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/30 "2016-07-15T01:20:54Z")
The _really_ influential early cases are rarely or never cited, precisely because they are influential and the rules for which they are the precedent are settled and accepted, so judicial authority for them does not need to be cited. _Scrope v Grosvenor_ (1389) is authority for the proposition that you can’t adopt a coat of arms that is already in use by someone else. English heralds have respected the rule ever since, and refused to grant arms that are identical, or excessively similar, to existing arms in use by someone else. Because of that administrative practice, it’s never necessary to cite _Scrope v Grosvenor_ in court, but it’s still good law. (And indeed the principle underpinning it has been extended by statute into other areas of law - e.g. trademarks, corporate names). There would be many similar examples. ---
**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:** [July 15, 2016, 4:21am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/31 "2016-07-15T04:21:12Z")
> [@slash2k](#): > > …itself quoting _Calvin’s Case_, decided by the Court of King’s Bench in 1608. I know I’ve cited _Calvin’s Case_ but can’t remember if it was in an opinion or an article. I think an opinion. ---
**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:** [July 15, 2016, 4:24am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/32 "2016-07-15T04:24:05Z")
> [@AK84](#): > > - Why are all these cases from King James VI/I reign? Because James was pushing the envelope with that “divine right of kings” tosh, so it became an issue in the courts. Same reason there’s suddenly a series of cases about _habeas corpus_ while George W. was president. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [September 24, 2019, 10:44am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/33 "2019-09-24T10:44:27Z")
> [@UDS](#): > > The _really_ influential early cases are rarely or never cited, precisely because they are influential and the rules for which they are the precedent are settled and accepted, so judicial authority for them does not need to be cited. > [@AK84](#): > > Yes, in everyday practice you won’t ordinarily cite such old case\*s. However, many of the very old cases lay down fundamental aspects of law (Bonhams Case, Judicial review), Case of Proclamations; No power except what is given by law, Earl of Oxfords Case; Equity to take precedence over Common Law), so before an Appellate forum you might cite them. > > - Why are all these cases from King James VI/I reign? > [@Northern\_Piper](#): > > Because James was pushing the envelope with that “divine right of kings” tosh, so it became an issue in the courts. > > Same reason there’s suddenly a series of cases about _habeas corpus_ while George W. was president. **BUMP** Considering todays UKSC judgement which can be summerised as "but but, _Case of Proclamations_!, maybe we need to revist this. ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [September 25, 2019, 12:01am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/34 "2019-09-25T00:01:05Z")
> [@Northern\_Piper](#): > > … 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. So even way back then, it took nearly 3 years to resolve a court case like this. Even when it started directly in the highest court; the Archbishop going directly to the King. So delay in court proceedings has an equally long history! ---
**Author:** ![purplehorseshoe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/purplehorseshoe/32/2996_2.png) [@purplehorseshoe](https://boards.straightdope.com/u/purplehorseshoe)\ **Post date:** [September 25, 2019, 6:44am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/35 "2019-09-25T06:44:47Z")
> [@mascaroni](#): > > . I like to quibble. It’s a hobby of mine. I’d like to point out that, much as I dislike Scotland, the word “Scottish” should be capitalised. > > Where exactly in England is NSW? Northampton South West? I kept parsing it as Not Safe [for] Work. ---
**Author:** ![PatrickLondon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/patricklondon/32/4422_2.png) [@PatrickLondon](https://boards.straightdope.com/u/PatrickLondon)\ **Post date:** [September 25, 2019, 8:38am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/36 "2019-09-25T08:38:02Z")
> [@purplehorseshoe](#): > > I kept parsing it as Not Safe [for] Work. Presumably New South Wales, so you weren’t far wrong. ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [September 25, 2019, 5:38pm UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/37 "2019-09-25T17:38:48Z")
> [@UltraVires](#): > > Surely one only uses this type of ancient case law in a historical treatise or other scholarly work, right? I cannot imagine arguing to a local judge that my client had the legal right to do X because of a ruling of the Star Chamber court in 1511. I’ve done this to illustrate the antiquity of a legal principle applicable to the case I’m briefing. Most commonly, I will cite New York cases from the 1800’s, but I’ve submitted the following to a New York Bankruptcy Court for the proposition that a lease without a specific termination clause could not be terminated: > [@](#): > > The common-law courts have recognized that the lease obligations may not be terminated absent an express condition since at least 1647, when the Court of the King’s Bench decided _Paradine v. Jane_, 82 Eng. Rep 897 (K.B. 1647) (available at [https://h2o.law.harvard.edu/cases/2284](https://h2o.law.harvard.edu/cases/2284)), in which a tenant sought to be excused from paying rent because: “a certain German prince, by name Prince Rupert, an alien born, enemy to the King and kingdom, had invaded the realm with an hostile army of men; and with the same force did enter upon the defendant’s possession, and him expelled, and held out of possession.” The King’s Bench held that, notwithstanding the invasion, “when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.” _Id._ In other words, _Paradine_ holds that because the parties could have provided in the lease for a rent abatement or lease termination in the event of invasion but failed to do so, the tenant’s obligation to pay rent continues unabated. ---
**Author:** ![Melbourne](https://avatars.discourse-cdn.com/v4/letter/m/b5e925/32.png) [@Melbourne](https://boards.straightdope.com/u/Melbourne)\ **Post date:** [September 26, 2019, 1:23am UTC](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284/38 "2019-09-26T01:23:09Z")
> [@PatrickLondon](#): > > Presumably New South Wales, so you weren’t far wrong. And I don’t know the case, but it’s actually a case relevant to this and other threads here. Misprision of felony was a common law offence. The common law offence was perhaps considered obsolete: then it was revived to cover gaps in statutory law, then, in the UK it was abolished by statutory law in 1967. Australian states followed in the next couple of years, except, I believe, NSW. So there was considerable law history referenced when the common law offence had to be “revived”, up to 1967, after that common law precedents continued to be relevant only in NSW. NSW replaced misprision with a statutory offence in 1990, so I’m **guessing** than the case which referenced Knut was before then ?? Of course misprision of felony is also relevant to the discussions we’ve had about if you have responsibility to report crime. I think that the reason it was revived was to catch people who were actually involved in crime, but not in a way that was caught by a statutory offence. So when the common law offence was abolished, it was probably (in places other than NSW), replaced by specific crimes like ‘aiding and abetting’. [Previous page](https://boards.straightdope.com/t/oldest-english-common-law-cases/259284.md?page=1)