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.
Which part of the “English Common Law” didn’t you understand?
Still interesting, though…
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.
Not in 1028 it couldn’t.
And it still couldn’t in 1628.
. 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?
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.
:eek::dubious::mad:
Bloody BAILII.
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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?
The Indiana Court of Appeals decision in Ankeny v. Governor of Indiana (PDF) (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.
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.
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.
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.
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!
I kept parsing it as Not Safe [for] Work.
Presumably New South Wales, so you weren’t far wrong.
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:
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’.