English Common Law

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Origins. Between the reign of William I in the eleventh century and Elizabeth I in the sixteenth century, the government of England was transformed into a constitutional monarchy grounded on the rule of law. Although the Roman Empire had conquered much of the island of Britain, their civil law system did not leave the lasting influence that it did on the continent of Europe. Instead, until 1066, English legal institutions were influenced more by the customary traditions of the Germanic Angle and Saxon tribes. Consequently, unlike the civil law nations, the parliamentary code was not a prominent source of law in precolonial England. Rather than being written down into a comprehensive code, English law was the accumulation of legal customs and traditions. This law became known as the “common law” because it became common throughout England. The mechanism that produced the common law was the rule of stare decisis, which informally requires judges to follow past decisions on the same questions of law and fact. Stare decisis encouraged both uniformity and flexibility in the law as judges followed precedent, or carved out distinctions from those precedents, when issuing rulings. Over time the common law developed into a complex system of rules and principles that could only be understood after considerable study and experience in court. The men who became knowledgeable in the common law and represented individuals with legal problems in English courts became known as lawyers.

The Jury. In 1066 William the Conqueror, a Norman, invaded England and began a new age in English history. William greatly enhanced royal political authority during his reign. He created and collected a national tax and insisted that all feudal lords owed their ultimate allegiance to the king. William also diminished the legal authority of the feudal lords by encroaching on the jurisdiction of the manorial courts. He retained the Anglo-Saxon jurisdictional framework of shires that English kings had devised in the eleventh century. Under the shire system administrative and legal authority was held by a royal officer called the shire reeve (sheriff). William also integrated the jury into English justice. Under the jury system a royal minister or justice, who was usually a clergyman, would go out into the country to determine the wealth of the manorial estates for the purpose of taxation. The minister summoned a group of twelve free men together and asked them to testify under oath about the value of each estate. This assembly of free men was called a jury. Eventually the jury also became the body responsible for finding facts and issuing verdicts in civil and criminal cases. While the Continental nations continued to follow the inquisitorial method of justice, the English gradually developed an adversarial system. Under the adversarial process the parties to a dispute argued their cases in front of a judge and a jury of their peers. During the early centuries of the jury system the judge and jury were actively involved in looking for evidence. The jury could even ask questions of the parties and witnesses in a trial. Gradually, however, the judge and jury became more independent and left trial strategy and the location of evidence to the parties and their lawyers. The judge took on the role of an umpire who decided questions of law. The jury became primarily responsible for deciding factual questions. In the twelfth century Henry II expanded the use of the jury to identify and indict persons suspected of committing criminal acts. The king required these “grand juries,” which were comprised of several members of the community, to report every case of robbery, murder, and arson that had occurred since their last meeting with the circuit justice.

Magna Carta. By the thirteenth century the monarchy had seized a considerable amount of political and legal power from the feudal lords and transferred it to royal courts and councils. Henry I, for example, established a permanent council called the Court of the Exchequer. This group of royal advisors was responsible for collecting taxes, paying for the expenses of government, and auditing the minor officials who handled the nation’s money. The Court of the Exchequer was the first of several special councils or departments created to deal with specific affairs of the state. During the late twelfth and thirteenth centuries several groups began to chafe at the trend toward centralized monarchical authority. In 1215 nobles, clergymen, and commoners rose up against King John and forced him to accept and seal what has come to be known as the Magna Carta (Great Charter). In this agreement John promised that he and his successors would follow the rule of law in dealing with their vassals and subjects. The Magna Carta implied that there was a law higher than that of the king’s will and that the nobility had a legal right to force the king to abide by the law of the nation. Article 39 of the charter also established the principle of due process, the idea that the state cannot take away an individual’s property or freedom without a fair and impartial hearing. The English would come to conceive of the Magna Carta as the foundation of liberty and constitutional government.

Courts. By the time of Edward I, English legal jurisdiction was divided into several separate courts with special areas of jurisdiction. The Court of Common Pleas was responsible for hearing civil cases between commoners. The Court of King’s Bench was responsible for trying civil and criminal cases and became the highest court of appeal in the nation. The Court of the Exchequer handled the financial affairs of the nation and had exclusive jurisdiction over cases involving unpaid taxes. Edward I also established the Court of Chancery to take over the civil cases in equity (cases that involved disputes outside of the established common law) so that the king’s council could devote its time to purely administrative and governmental affairs. During this same period a new judicial office emerged at the local level to handle civil functions and minor criminal offenses. This official was called the justice of the peace. The justices were usually large landowners or knights who had acquired popular respect and prominence among their communities. By 1600 the English judicial system had reached its modern form; and when English men and women began coming to settle in America, they brought with them the traditions of constitutionalism and the English common law.

Sources

John Hamilton Baker, An Introduction to English Legal History, third edition (London: Butterworths, 1990);

Arthur R. Hogue, Origins of the Common Law (Bloomington: Indiana University Press, 1966).

English Common Law

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Origins. The English common law, from which Americans borrowed heavily in the colonial period, had evolved for centuries in England. Its principles and rules were extensive and complex, and they varied by region and locality. Common law developed through practical experience over time and thus became distinguished from a legal code in which the law was summarized all at once. The royal courts established by the Normans slowly harmonized the divergent laws and practices that had characterized the Anglo-Saxon courts before the conquest of England in 1066. Because the royal courts were in greater contact with one another than the older regional courts had been, there developed similarities in interpreting the law. This situation did not create one law for all of England, as regional and local variations continue even today, but it did overlay local variations with principles of interpretation that were common (hence the term common law) to the nation at large.

Coke. This kind of law was not legislated by assemblies but instead evolved through the decisions of judges as they confronted new situations requiring the applications of established principles. Perhaps the greatest of these interpreters was Sir Edward Coke, chief justice of Common Pleas and King’s Bench from 1606 to 1616. He lost his position after arguing that the king, James I, was bound by the law like any other man. But his collection of common-law rulings, called Reports (1600-1615), and his later books, the four-volume series Institutes (1628-1644), became the definitive works on English law for succeeding generations.

Colonies. Bringing the common law to America was not easy. For one thing, a complex legal system did not easily meet the needs of the simple communities that were founded on the eastern shore of North America in the 1600s. Colonial lawyers and judges had little interest in the esoteric knowledge of those trained in common law, the principles of which seemed at times foreign and strange compared to local expectations. Wealthier colonial

elites tended to control court appointments, and a looser, more open attitude toward legal interpretation often suited their economic interests better than the common law. In the early years the pattern was to borrow as much as seemed necessary and no more. Lawyers often were frowned upon as unnecessary at best, and at worst as nuisances who confused other people with silly legal intricacies.

Eighteenth Century. Not until the colonies were established and growing in social and economic complexity did interest mount in borrowing extensively from English law. As the colonial legal systems became Anglicized after 1700, the common law was used more widely. Unfortunately most colonial judges did not understand common law, and relatively few American lawyers studied in England. Not until Sir William Blackstone produced his Commentaries on the Laws of England (1765-1769) did there appear a reliable and thorough guide to the subject. Formal legal training did not improve appreciably until the late colonial and Revolutionary eras. By the 1800s English common law was accepted by many as a part of the national legal heritage, especially in states like New York. But even then Thomas Jefferson argued that Americans had never adopted common law. Well into the nineteenth century leading politicians argued that the common law was undemocratic and that only experts with years of training could master it. Many maintained that it was better to be governed by legal codes adopted by the legislature than by an abstruse set of judicial rules.

Sources

Daniel J. Boorstin, The Mysterious Science of the Law (Boston: Beacon, 1958);

Bernard Schwartz, The Law in America (New York: McGraw-Hill, 1974).

English Common Law

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Henry II. Although there had been various legal codes in Anglo-Saxon England, they had all been declared moot by the conquest of William the Conqueror in 1066. For the next century of English history the Norman and early Angevin kings did not issue a code of laws, nor were many legislative acts made. Only during the reign of Henry II (1154-1189) were new laws, the assizes, regularly issued. Some of these laws abolished older traditions and statutes, while others established new legislation. Also during this reign the first English account of legal proceedings, De legibus et consuetudinibus regni Angliae (Concerning the Laws and Customs of

the Kingdom of England) was published, probably written by the king’s chief legalist, Ranulf de Glanvill. Finally, by the end of Henry IPs reign, royal clerks were taking notes of the decisions made in the king’s court and the opinions uttered in support of them

Documentation. From this time forward in England, law books, assizes, and law collections (both of common and canon law) began being written, especially by private lawyers seeking to exhibit their expertise. These statutes concerned both the administration of justice and judicial procedure. They discussed the specificity of the powers and duties of judges, sheriffs, and other lawgivers and law enforcers. They also established the procedures of bringing and carrying out lawsuits, of which there were many during this and later medieval periods. Finally, the ethics of law were emphasized: all legal actions were to be carried out with expertise and experience.

General Eyres . Of the practicalities that English common law established, one of the most important procedures was that of the “general eyres.” The general eyres were regular, kingdom-wide visitations made by royal judges to each and every county in England. These judges would visit local centers of importance, stay for at least a week and sometimes for several weeks, hear any cases within their royal jurisdiction, make their decisions, and then move on to a neighboring locale. The jurisdiction of these judges was widespread: they could decide cases that dealt with pleas to the Crown; pleas initiated by royal writs, tenancies, wardships, and marriage rights; criminal cases; payments for the king’s ransom; rebellions against the crown; the sale of wine against regulations; cases regarding ownership of land below a certain value; the election of coroners; a tallage (tax) of the royal demense (manorial land); the loans of Jews; and the exactions of royal officials. These circuit judges, combined with the Court of Common Pleas (or the Bench), the central royal court, heard any civil cases put forth by all common men, regardless of rank. They were the first legal body to do so in the western world and established a precedent upon which all judicial bodies in England and English colonial lands were built. Undoubtedly, English common law also led to the further establishment of other freedoms of governance for common men in England and elsewhere.

Sources

John Hudson, The Formation of the English Common Law: Lain and Society in England from the Norman Conquest to the Magna Carta (London & New York: Longman, 1996).

George Williams Keeton, The Norman Conquest and the Common Law (London: Benn, 1996; New York: Barnes & Noble, 1996).

S. F. C. Milsom, Historical Foundations of the Common Law (London: Butterworth, 1969).