Historical Foundations of the Common Law

Historical Foundations of the Common Law

1st Edition - January 1, 1969

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  • Author: S. F. C. Milsom
  • eBook ISBN: 9781483182551

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Historical Foundations of the Common Law provides a general overview of the development of the common law. The book is comprised of 14 chapters that are organized into four parts. The first part deals with the institutional background and covers the centralization of justice; the institutions of the common law; and the rise of equity. The second part deals with land properties, while the third part talks about legal obligations. The last part details criminal administration and law. The text will be of great use to individuals who have an interest in the development of the common law.

Table of Contents

  • Introduction

    I. Institutional Background

    1—The Centralization of Justice

    Local and Customary Laws

    County Courts

    Hundred and Franchise Courts

    Records of Local Courts

    Feudal Jurisdictions

    Jurisdiction of the Church

    The Pattern of Centralization

    The Eyre System

    Rise of the Central Courts

    The Writ System

    2—The Institutions of the Common Law in Its First Formative Period

    Write and Their Learning

    Ancient Pattern of Law-Suit



    The Year Books

    The Trial

    The End of Oral Pleading

    Business Done on Circuit

    The King's Bench

    Jurisdiction in Error

    3—The Institutions of the Common Law in Its Second Formative Period

    The Nature of the Change

    Fictions concerning Jurisdiction

    The Increase of Business

    Replacement of Old Actions by New

    Changing Pattern of Law-Suit


    Special Verdict

    Other Mechanisms of Discussion in Bank

    Discussion of Facts Coming out at the Trial

    Discussion after Trial of Matters Raised by Pleadings

    Substantive Result of Procedural Changes

    4—The Rise of Equity

    Procedural Bearings of Early Equity

    Theoretical Relationship between Law and Equity

    Conflict between Law and Equity

    The Regularization of Equity

    II. Property in Land


    Lordship and Ownership

    Agricultural Tenures

    Military Tenures

    Heritability and the Ownership of Land

    The Incidents of Tenure

    Services and Incidents

    Mortmain and Quia Emptores

    Consequences of Quia Emptores and of the Incidents

    6—Early Actions

    Seisin and Right

    The Writ of Right

    The Assize of Mort d'Ancestor

    The Assize of Novel Disseisin

    Writs of Entry

    The Change in Underlying Ideas

    7—Later Actions

    Protection of the Term of Years

    Actions concerning Freehold in the Fourteenth and Fifteenth Centuries

    Use of Ejectment by Freeholders


    8—Settlement of Land at Law

    The Heritable Fee and the Rise of the Entail

    Later History of Entails

    Working of Warranties

    Barring of Entails by Warranties

    Fines and Recoveries

    Contemporary Attitudes to Entails and Their Barring

    Settlement and Resettlement


    Contingent Remainders

    9—Uses and Trusts Land

    The Problem of Origins

    Situations in which One might Hold for the Benefit of Another

    Grant and Regrant

    Relationship with Devise

    The Feudal Incidents

    Uses as an Institution

    The Mischiefs of Uses

    The Statute of Uses

    The Statute of Wills

    Uses at Law

    Uses and Conveyancing

    Legal Executory Interests


    Rise of the Trust

    III. Obligations

    10—Old Persona Actions

    The Beginnings


    Debt on an Obligation

    Covenant and Conditional Bonds

    Debt and Detinue

    Debt on a Contract

    Detinue for Goods Bought

    Detinue on a Bailment

    Detinue against Persons Other than Bailees


    11—The Rise of Trespass and Case

    The Beginnings

    Trespass vi et armis and Its Extension

    Liability in Trespass vi et armis

    Actions on the Case

    The Relationship between Trespass and Case

    12—Growth of the Modern Law of Contract

    Assumpsit for Misfeasance

    Actions on Warranties

    Assumpsit for Nonfeasance

    The Early Nonfeasance Cases

    Disablement and Deceit

    Pure Nonfeasance

    Assumpsit for Money: the Background

    Assumpsit for Money: the Kinds of Claim

    Consequences of Slade's Case


    13—Rise of Modern Law of Torts





    IV. Crime

    14—Criminal Administration and Law

    Pleas of the Crown

    The Initiation of Proceedings

    Mode of Trial

    Organization of Criminal Courts

    Vehicles of Change in Criminal Law

    Substantive Development of Criminal Law


    Tables of Cases

    Table of Laws and Statutes


Product details

  • No. of pages: 480
  • Language: English
  • Copyright: © Butterworth-Heinemann 2013
  • Published: January 1, 1969
  • Imprint: Butterworth-Heinemann
  • eBook ISBN: 9781483182551

About the Author

S. F. C. Milsom

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