A History of English Common Law

The origin of English Common in the 12th century was sparked by the death of King Henry I in 1135. The nephew of Henry I was Stephen, and he was acknowledged to be the rightful king, but the magnates and such had sworn loyalty to Henry's daughter, Matilda. The entire reign of Stephen, which lasted from 1135 to 1154, was spent fighting with Matilda and her French husband. Upon Stephen's death the son of Matilda, Henry II, became king in 1154. It was from here on that the King started to take noticeable interest in the dealings of the court system, and put in to place a royal system instead of allowing the lords to deal with all matters in feudal courts.1 According to F. W. Maitland,
…The reign of Henry II is of supreme importance in the history of our law, and its importance is due to the action of the central power, to reforms ordained by the king. …He was forever busy with new devices for enforcing the law.
The term "common" is used because the laws established are just that, common to every jurisdiction and administered through a central court.2 When Innocent III ruled, the term was used in the church as well as in the royal courts to distinguish ordinary law from the law applicable to particular provincial churches.3 The term "common" also stems from the fact that the law was "characterized by processes of categorization and routinization, in particular the routine royal treatment of a wide range of cases."4
Arthur Hogue sums up the common law by using two opposite views. What the common law is not, and what it is. He says
The common law is not a written code. …the principles of common law have always eluded complete embodiment in any code or collection of writings. Judicial decision recorded on the plea rolls of the common-law courts, declaratory statures, and learned treatises on the common law may all express the principles of the common law, but these writings never comprise its totality.5
Another rule that does not apply to the common law is that the common law does not apply to a single group, for example the church. Therefore it is unlike the canon law. Third, the common law is not local custom for everyone, and it is not identified along with the rules of any of the local courts. Specialized rules are not part of common law. Rogue goes on to explain what the common law is by using five simple explanations. First, the common law is a "body of general rules" that apply universally throughout the realm. Second, royal courts enforce the laws. The treatise called Fleta states that "the Crown asserted a general responsibility for the judicial work of every secular court in the land." Third, the laws are made in reaction to actual legal controversies, as opposed to the whim of the lawmakers. Fourth, the jury selected becomes increasingly more knowledgeable about the facts and particulars of a certain case. Finally, the supremacy of law is very important to the tradition of common law. All subjects are held responsible for the laws decided, and are all subject to examination. These five principles of common law briefly explain what common law is.6
To differentiate between how the laws of England changed after King Henry II, a comparison of the court system can be used. Local, ecclesiastical, and borough courts decided cases in the old system of English law. Each of these courts could render very different decisions based on the same case and it was acceptable. The common law courts can be listed as Common Pleas, Seignorial courts, King's Bench, and Exchequer.7
The local courts, or courts of the counties, began to lose their importance as the royal courts, the Common Pleas, began to extend jurisdiction. The people of the area created the local courts; the royalty had nothing to do with it, so these new Common Pleas courts took away certain feelings of local pride. Therefore, these common courts were the most difficult to establish, and for many years many of the hundreds and such remained intact to protest the new rule. Local common law courts, referred to as shire courts or hundreds, had irregular schedules and meeting places. Sometimes the courts would meet outside, and other times they would meet in houses or monasteries. In to the thirteenth century, however, a schedule of meetings and meeting places had been established, making it easier to organize and hear pleas. These local courts heard claims that dealt with land, violence and theft, and some ecclesiastical cases.8
The hundreds dealt with and enforced a system of peacekeeping called frankpledge. This body of police consisted of about ten men who swore to be faithful to the king, and swore to bring wrongdoers to him so that they could be punished. The group was collectively known as a tithing. Once a boy reached the age of twelve, he was expected to swear and oath of loyalty and strive to belong to the tithing. Certain men were not included in frankpledge for various reasons. The inhabitants of the forest, clerics, and those under control of lords were not allowed to become part of the tithing. The tithing was a basic form of law enforcement that is similar to the system in modern England. The men are the police, guards, punishers, and examples for the entire area. When one does wrong, he is amerced, or forced to pay a fine or suffer a punishment. When someone who is not a part of the tithing commits a wrong, the entire community is amerced, so it is considered a good to the whole of the community if as many men as possible are allowed to be in tithing.9
The seigniorial courts were established for the Lords. The greater men were distinguished from the lower lords in all ways, including the judicial system. The honorial courts were not only a place for the lord's pleas to be heard, but were often used as a sort of advising time for the lords to meet and discuss issues with the vassals. The lords generally kept jurisdiction over their own households, but some sought to extend their personal jurisdiction to the actions of any man on their property. This type of jurisdiction was commonly referred to as "sake and soke." This type of jurisdiction is like that of the hundreds in most ways. Along with sake and soke comes the right of lords to exercise infangentheof, or execution. The hundred courts were not allowed this right.10
The King's Bench court generally deals with the placita coronae, or the pleas of the Crown, criminal cases, and appeals. The appellate branch of this jurisdiction was over the court of Common Pleas. These two courts exercised a joint jurisdiction over civil actions. The King had a choice to sit on the bench with the judges and make decisions, as he did occasionally, hence the term the King's Bench.11
The Court of Exchequer was made of the marshal, the chamberlain, the justiciar, the treasurer, the chancellor, accountants and clerks. These men sat to decide royal financial matters as well as other pleas. This court was basically the only court in Angevin England that could not be ignored anywhere.12
These courts, along with a few others, made up the judicial system that imparted common law. There are differences between the common civil and common criminal laws however, although they are decided in general by these same courts. Henry II was the first to require a jury of indictment. This meant that a jury of men who swore loyalty to the King was responsible for deciding whether or not a man could be guilty of a crime. If the jury decided that he could have committed the wrong, then he was sent to trial. The regular jury was then selected, and usually it consisted of most of the same men from the indictment jury. Once it was decided that this was unfair, a petty jury was selected of different men. These men were often from the same area, as it was expected that they would know something of the occurrence and be better able to make a judgment of truth and fact than someone who had no previous knowledge of the case or who was involved.13
Land holding in common law is difficult to classify. The "customary framework of the control of land held ‘in fee'" can easily be divided in to three categories, the first of which is security of tenure.14 If a lord forfeits his lands, or does something to make the King take his lands, the tenants on the land are in danger of losing their usage of the same land. Customarily, a tenant had considerable security in relation to the possible change of a lord. It was believed that the longer a man in good standing held the same land, the better chance he had of keeping the land and not being forced to forfeit it.15
The second category of land holding is heritability. After the Norman Conquest, the Normans were accustomed to the idea that the son was the heir to the property, and would always inherit what his father had owned. This idea held true after the conquest and in to the Anglo-Norman period. To ensure the proper land was being inherited, records were kept referring to the gifts of any man to another. Some charters written, however, were written to ensure that the landholder knew that his holding was only for life, and could not be passed to his children. An example of this would be the church giving land to laymen. When there were several male heirs, the eldest received the entire inheritance.16 It was the same with females until around the 1130's, when the inheritance was divided among all of the daughters of a family without a son. As can be expected, there were several instances where the inheritance was not definite. If the son was a minor, then the lord might wish to have a temporary adult vassal. Lords were also wary of distributing their land to more distant relatives of the deceased. Another example of difficulty in determining an heir would be when the man had married more than once and had subsequent male heirs. The lord did have the authority to choose who got the land, or not to grant the land to anyone at all.17
The third landowning classification is alienability. The first way to be alienated is subinfeudation. This is when the land is given to a new tenant, and that new tenant owes his services to the lord, and relieves the old tenant of those duties. The second method is called substitution. Both of these involve the taking away of land from a tenant. When a lord wished to give land to the church in a gift, he often had to alienate it from a tenant of his. Tenants were also allowed to give their holdings to others, as long as the receiving tenants promised to be loyal to the lord. These land-owning classifications are used primarily to describe how the land was held and who it rightfully belonged to, which is helpful to common law courts in settling disputes over land and between lords.18
The monarch who had the most influence at the beginning of common law was Henry II. In 1154, Henry was crowned King of England. His desire for a more absolute government was visible as soon as he took the throne. He was already duke of Normandy and of Aquitaine, so his French affairs kept him out of England for the majority of his reign. It was Henry II who established the desire of the monarch to control the laws of the land, and therefore the new court system is attributed to him. King Richard I and King John were abusive and negligent rulers, but they failed to destroy the upstart of the common law. His more prominent successors, his son Henry III, and Edward I, carried on the development of the common law by persuading Parliament to enact new laws and taxes beyond the customary feudal dues.
King Henry II is credited with developing ways to handle disputes over property. In fact, it was the most important to him between the years 1164 to 1179. He also believed that the jury should be involved in any land dispute. From this comes the royal doctrine that "no man need answer for his free tenement without a royal writ."19 This just meant that any dispute needed a royal writ to be heard by the jury. Several Assizes were made during the aforementioned time period to assure that the method of resolving land disputes was common all over. The Assize Utrum was reached based on the Constitutions of Clarendon in 1164. This Assize stated that if "one party in a case claimed the land was frankalmoin (ecclesiastical tenure) and another claimed it was lay fee, then, said Chapter Nine of the Constitutions, the matter should be settled by the verdict of a jury. The Assize of Novel Dissuasion was established in 1166 to "supply a speedy remedy for the dispossessed freeholder: ‘The king himself will protect by royal writ and inquest of neighbors every seisin of a free tenement.'" This Assize restored possession to someone whose property had been disturbed. In the end, a jury would be used to decide which man had better claim to the disputed land. The Assize of Mort D'Ancestor, which may have come from the council of Northampton, was developed to protect someone who lost a relative and sought to seize the land that had belonged to him or her. A jury was to decide "whether the dead man had possession at the time of his death and whether the claimant was his heir." One last Assize was the Assize of Darrein Presentment. This particular Assize did not concern land, but instead dealt with the power to appoint a clergyman to fill a vacant office, or advowson. This power of nomination was treated as a property right. The jury was just asked to decide who would be allowed to nominate the clergyman. These four Assizes therefore governed questions of property rights throughout the countryside.20
When there was a question of fact, the English Royal Courts thought that the best way was for a jury to decide what is true, but the trip to Westminster Hall was often expensive and therefore unfeasible for most people. The answer to this problem was know as nisi prius, which means "unless earlier." This allowed for the plea to be heard in the county that it pertains to, and that if the royal justices arrived in the county before they made it to Westminster, they could hear the case right there. This applied to any case that could normally be brought before the common law courts at Westminster.21
Gaol delivery was useful for the commissioners because it freed up space in the jails for the real criminals. It involved allowing appointed commissioners to travel from county to county to try the prisoners, as a royal court must try them. Under the reign of King Edward, the commission of Oyer and Terminer was established. This type of commission resembled a mobile mini-court that was enabled to hear felonies and other high crimes.22 According to Rogue
The steady employment of juries of freeholders and the appointment of knights of the shire as commissioners to serve as justices show the Crown making excellent use of men prominent in their localities. These "lay judges"—to contrast them with the professional justices—represented the royal authority in their counties and, even more readily, represented their county courts at Westminster. After the decline of the general eyre they became essential to administration of royal justice in the late fourteenth and fifteenth centuries.23
As the common law took root, equity in decisions faded away. Perhaps the only protected laws and decisions were involved with canon and ecclesiastical law. Until the early fourteenth century, some equity remained in the court system, but soon enough the common law of the land took away the fairness by not being written specifically. Judges could be corrupt and could be bought over for decisions. One example of a man who was trying to conserve equity was Chief Justice Bereford, who was a layman. He said in 1319 "a plea of account shall not be conducted my Common Law, but by equity and reason." Quickly he became disliked, and no ecclesiastic was appointed to judgeship after 1316.24
When the eyre, or traveling court, was fully comprised of "the architects of the Common Law system" most people were scared of it. Although it was easier to use, as one did not have to wait for a writ to be heard, and no lawyers had to be hired or anything like that, most people would wait sometimes for seven years for a travelling branch of the Exchequer to come to the county to hear cases. As a result of this, some cases were not even heard because by the time the court arrived, there were too many cases to be handled in the time allotted. This eyre was conceived basically to help the poorer citizens, and the wealthier chose to continue to do their legal business at the court in Westminster. This system of eyres lasted for nearly one hundred years before it was abandoned. The system had made steps toward equity as it had allowed even the poorer men and tenants to be heard in the courts of law as equal as the richer people. Once a more rigid case law had been established, however, more and more people were scared of the court's interpretation, or their use of stare decisis, in relation to a decision. It was true that for some time the decisions of the eyre judges did not come strictly from writ bound and case bound law.25
As has already been discussed, Common law was integrated with the expectation of equality. However, as is usually the case, women were often excluded from civil remedy. Men had a large amount of political control over their wives, and the women were offered no means of recovery from abusive situations. When a woman inherited land, it was managed and under the name of her husband, as was all of her moveable goods. However, upon her husband's death, a woman was allowed to make her own transactions in her name and even allowed to revoke some of her husband's transactions. These are civil matters. In dealing with criminal law, a woman is only allowed to bring to the appellate level any case involving the death of her husband or rape. And in some courts, it was required that the woman actually witness the death of her husband to be considered as a decent claimant.26
In the fifteenth century, the idea of a common law had gone throughout and diffused in to nearly all of England. Men were well versed in many laws that pertained to them and their property and inheritance. They learned that "The law was no longer a shield for the weak and oppressed—rather it was a sword for the inscrupulous. Men learned its rules as they learned the rules of sword play."27 Soon after the Black Death, the country went in to a "slump" with regard to the economy. The soldiers were returning from the Hundred Years War, and the market was fluctuating with no remorse. The higher social classes liked the system of common law, as it was easy to buy skilled lawyers and such to get out of trouble. The lawyers, who were now making up their own classes, wealthy and country gentry, became indistinguishable in status while in the House of Commons. It was not feasible for an absolutely poor man to become a lawyer as he would not be able to live the life as it is expensive, but there were social divisions. The court of Chancery was considered to be the last resort to restoration of order. The more difficult and unruly subjects were referred to him as their judge, and he helped the king decided cases in which there was no common law decision possible. Once the Court of Chancery had dealt with and sorted out the most difficult cases, it was decided that the King should resume the judicial powers that had been away from him for nearly three centuries.28
The Common Law of England may very well have been abolished in the fifteenth century when the War of the Roses weakened the strength of the throne and also the central government's powers of law and enforcement. According to Hogue
Men of wealth and influence terrorized juries, bribed witnesses, intimidated judges, and controlled sheriffs, while intervening in litigation not their own. The weak could not secure justice.29
Only after King Henry VII was the common law restored to something respectable. Again in the sixteenth century, however, the common law was threatened. This type of threat resembled the takeover of Roman law in place of the medieval system in place. It was only to be expected, as most scholars studied the Roman law as the foremost legal system in Europe. King Henry VIII saved the common law from being torn apart, even though he favored Roman law. Once the Tudor dynasty ended and the Stuart family resumed the throne, many political issues came about. The Great Reformation swept across the country and most of the European continent as monarchs struggled to compete with the church for absolute power over the entirety of the legal systems. This absolutist point of view jeopardized the common law, as surely the monarch in control could and would appoint judges that favor him and his desires. Once the Parliament was decided to be the legislative sovereign, it was decided that the common law would never be the same, as it was always to be affected by written statute passed by parliament, with or without total consent from the monarch. The establishment of the legislative power of the Parliament as well as political uprising in favor of reform led to a reorganization of the court system. The Judicature Act of 1873 merged the Common Pleas court, King's Bench, and Exchequer in to the King's Bench Division and Commercial Court. The medieval courts that survived were the courts of Assize, Oyer and Terminer, and Gaol Delivery. The doctrine of Stare Decisis is still intact however, and every case is not considered solely on the rules in the books.30 Judge Baron Parke stated the modern theory of case law:
Our Common Law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency, and certainty, we mush apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised. It appears to me to be of great importance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interests of law as a science.31
In conclusion, the common law of England went through many barriers to officially be the legal system, and as it developed it worked out its own kinks, only to be threatened by war and economic troubles, and finally by the monarch himself.