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An Overview of Common Law

An Overview of Common Law



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Published by Marcos

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Published by: Marcos on Jul 31, 2009
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An Overview of “Common Law”
Two great systems of law have spread over the Western world. Civil law,descended from the laws of the Roman Empire, is used by most Europeancountries. Common law, descended from the common law of England, is used inthe United States and most of the Commonwealth countries. Both systems of lawresist simple definition. Unlike civil law, common law was not embodied in a text or code. Rather, it evolved case after case in court decisions; the common-law judgedid not consult an official text before rendering his judgment, but drew instead uponprecedents established by other court decisions. Jurists eventually wrote treatisesand commentaries on the common law, and although these commanded therespect of the legal profession, they did not constitute law and judges were notcompelled to follow them when deciding cases.
Common law developed in England after the introduction of feudalism following theNorman Conquest (1066). In feudalism the monarch was the supreme landlord. Alltitle to real property was ultimately traced to the crown. The king made land grantsto the great barons, who in turn made grants to their own retainers, or vassals.Each grant created certain obligations for both tenant and landlord, and privatecourts were created to oversee the performance of these duties. On the lowestlevel, every manor had a manorial court with jurisdiction over the manor’s serfs. Ona higher level, the great barons provided honorial courts to settle disputes amongtheir vassals, or knights. The principal concern of such courts was the land grantsthat the vassals received in return for military service: the courts oversaw the rulesof inheritance, marriage, and other matters that pertained to the land grants.
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At the head of the system of courts was the king’s court, curia regis, founded atWestminster by William I (r. 1066-87). Originally an advisory body of the barons, itdeveloped legislative and judicial functions. From the former emerged Parliament;from the latter, the royal court system.As the power of the king gradually increased, the great barons played a lesser rolein the curia regis. The king relied instead on a smaller, more specialized set of advisors within the curia. With the help of these advisors the monarchs, especiallyHenry II (r. 1154-89), sought to curb the power of the great barons by replacinglocal private law with a common law for the entire country, namely, the king’s law.In extending royal justice the curia regis was aided by the continued existence fromAnglo-Saxon times of the shire, or county, courts. Beginning in the 12
century,these local communal courts were visited at roughly 7-year intervals by royal judges sent from Westminster on a set route or eyre (from the Old French eire, acircuit). Royal justice was made available to a vast new segment of the population,and at these hearings, as well as at the court sessions in Westminster, began thecourt decisions, or precedents, that form the basis of common law.
One of the tools of royal justice was the Jury, which could only be summoned byroyal authority. In 1166, Henry issued the Assize of Clarendon, initiating aprocedure by which jurors were commanded to appear before a royal judge andrelate any knowledge they had of crimes or criminals in a given area. This sort of presentment jury became widespread thereafter. Later Henry instituted aprocedure called the grand assize to determine which of two or more claimants hadthe better right to a piece of land. Four knights elected twelve jurors who wereacquainted with the facts of the case and who, after visiting the site, informed thecourt which claimant had the better right. Such procedures proved popular as analternative to judicial combat, or ordeal by battle, which was then used in the feudalcourts.
The royal court exerted its authority by issuing Writs, or written orders in the king’sname, requiring some action to be taken by a defendant or by a local court. Anearly treatise on law compiled by Ranulf de Glanvill (d. 1190), the chief justice of the later years of Henry’s reign, gives “the writ for making the first summons.” Later this was called the writ Praecipe (command), from the first word of the Latinformula.The king to the sheriff, greeting. Command N. to render to R., justly and withoutdelay, one hide of land in such-and-such a vill, which the said R. complains that theaforesaid N. is withholding from him. If he does not do so, summon him by goodsummoners to be before me or my justices on the day after the octave of Easter, to
show why he has not done so. And have there the summoners and this writ.Witness Ranulf Glanvill at Clarendon.The king’s court had become three courts by the 13
century: Common Pleas,King’s Bench, and the Exchequer. During the 12
and 13
centuries, the justicesissued literally scores of new writs to settle issues before the court. A plaintiff atone of the local assize courts could present to an itinerant justice his plaint or grievance as a “bill in General Eyre.” If successful, he could obtain a trial of hiscase.
In addition to new writs, principally in common pleas concerning land, newpersonal actions appeared, such as the action of account, which was used at firstby a lord to compel his bailiff to account for the manor’s profits. Later the action of account was used against a person who had received money to be used for thebenefit of the plaintiff. Another important action was trespass, which called upon adefendant to show why he had caused damage to the plaintiff. The action of trespass developed into several actions including trespass to the person, to goods,and to land. Leaseholders acquired their own version of trespass, called ejectment;a tenant could demand to know why he had been ejected from his lease or termbefore it expired.Society is always changing, and sooner or later law must change to provide newrules and remedies. A more or less standard example of the manuscript collectionsof writs was printed in 1531, and thereafter printed editions of the register guidedlawyers in the drafting of writs until 1833, when forms of action were largelyabolished; by 1875 they were completely abolished.The common law was not entirely confined to writs. The king in council might alsoissue statutes restating or amending the decisions of the courts. Edward I isremembered for his Statutes of Westminster (1275 and 1285) and the Statute of Gloucester (1278). The second Statute of Westminster dealt at length with landand inheritance; it also encouraged the creation of new writs to provide remedies incases where no law existed. “Whensoever from henceforth it shall fortune in theChancery, that in one case a writ is found, and in like case falling under like law,and requiring like remedy is found none, the clerks in Chancery shall agree inmaking the writ...”Go to Top
The records of actual cases tried in the courts of Common Pleas and King’s Benchare the best evidence of the activity and continuity of the common-law courts. ThePublic Record Office in London contains vast quantities of such records; many of the bundles have never been opened. The case records contain details about thecause of action, the names of the litigants, and the decision of the court. Therecords show that as common law became more technical in the 14
century, a

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