2 - The Elizabethan Common Law

Summary

This chapter surveys the substantive common law in the later sixteenth century. The rise of habeas corpus enabled the judicial review of prerogative jurisdictions and powers, so that the rule of law was now firmly rooted. The new atmosphere of rights was linked to Magna Carta, now rescued from oblivion. Private law was still dominated by the land law. Remedies for the protection of real property were simplified, but much confusion had been introduced by the Statutes of Uses and Wills, and a major new concern was the use of perpetuity clauses in family settlements to prevent the barring of entails. The law of contract is largely timeless, but the doctrine of consideration belongs to this period, and a decision of 1602 finally sanctioned an action for recovering debts without the archaic obstacle called wager of law. The law of tort was dominated by defamation rather than negligence. Criminal law was not the concern of practising lawyers and was relatively undeveloped, especially at the level of misdemeanours. The role of the Star Chamber is considered. The chapter ends with a brief assessment of Elizabeth I’s attitudes to law and justice.