Historical Foundations of the Common Law by S. F. Milsom

By S. F. Milsom

This publication is directed on the relevant trouble in felony heritage: one isn't really reconstructing previous solutions to trendy questions, yet prior questions; and so they have been varied in sort. this present day we see legislation as a procedure of considerable principles which might be defined in textbooks, altered by means of laws, and embodied in a restatement or a code. it really is by some means cut loose society and desires separate adjustment; and there's a uncomplicated courting among criminal and different switch. If this had continuously been so, criminal and social and monetary heritage may all be effortless. they aren't. this kind of imaginative and prescient comes overdue in criminal advancements, and the typical legislation reached that degree merely in fairly contemporary occasions. yet ever in view that an early level fortune has preserved copious unique fabrics; and we will be able to wish to track not only the altering preparations of 1 society, however the phases during which at the very least one criminal process has handed, the altering ways that the legislations itself has been visible. The underlying questions have regularly been past dialogue in any sensible context. How some distance are correct and unsuitable man's enterprise instead of God's? How and upon what phrases are the assets of construction to be appropriated to members? yet solutions are at anybody time assumed, and verify what smaller questions come up as day-by-day company for these excited by the felony technique. it truly is to the altering nature of these functional questions that this e-book seeks to lessen the advance of every of the most branches of the legislation

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T h e rolls o f the c o m m o n pleas faithfully reflect the doings o f t h a t c o u r t because every action was started b y w r i t , b y royal order, and every step taken in pursuance o f that o r d e r was recorded. E v e r y case w h i c h reached the c o u r t at all is therefore t o b e found in the plea rolls; and the e n t r y o f the pleadings, verdict, and j u d g m e n t in a case w h i c h actually finished is generally preceded b y a l o n g series o f shorter and m o r e formal entries.

T o hindsight, the i m p o r t a n t result o f these departures was the creation o f substantive l a w . B u t this was n o t a focus o f attention at the t i m e . T h e year b o o k s astonishingly preserve the true infancy o f a m o d e r n legal system; b u t they will n o t often answer legal questions asked in m o d e r n t e r m s . THE TRIAL T o g o back once m o r e i n t o court, the pleadings are n o w over and the question has been formulated. If it is o n e o f p u r e law, o n e side or the other h a v i n g d e m u r r e d , then it will b e answered b y the c o u r t itself; and, unless the reporter misses it after adjournments, the answer is likely to b e in a year b o o k .

O n l y those in s o m e w a y licensed, the serjeant-counters, m i g h t practise t h e r e ; and for 2—The Institutions of the Common Law: First Period 29 reasons to w h i c h w e shall r e t u r n the " c o u n t e r " b e c a m e d r o p p e d f r o m their title and these m e n b e c a m e the serjeants-at-law, the monopolists o f all o r d i n a r y civil litigation. A l t h o u g h c o u n t i n g had been the heart o f a law-suit l o n g before there w e r e royal courts or royal writs, it has n o early literature; and this is because it was n o t generally the concern o f literate m e n .

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