An Overview of “Common Law”

LINKS
DEVELOPMENT OF COMMON LAW
The Kings Court
The Jury
Writs
Actions
RECORDS OF CASES
EQUITY
TREATISES
EXPANSION OF THE COMMON LAW

Introduction
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 European
countries. Common law, descended from the common law of England, is used in
the United States and most of the Commonwealth countries. Both systems of law
resist 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 judge
did not consult an official text before rendering his judgment, but drew instead upon
precedents established by other court decisions. Jurists eventually wrote treatises
and commentaries on the common law, and although these commanded the
respect of the legal profession, they did not constitute law and judges were not
compelled to follow them when deciding cases.

DEVELOPMENT OF COMMON LAW

Common law developed in England after the introduction of feudalism following the
Norman Conquest (1066). In feudalism the monarch was the supreme landlord. All
title to real property was ultimately traced to the crown. The king made land grants
to 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 private
courts were created to oversee the performance of these duties. On the lowest
level, every manor had a manorial court with jurisdiction over the manor’s serfs. On
a higher level, the great barons provided honorial courts to settle disputes among
their vassals, or knights. The principal concern of such courts was the land grants
that the vassals received in return for military service: the courts oversaw the rules
of inheritance, marriage, and other matters that pertained to the land grants.
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The King’s Court

At the head of the system of courts was the king’s court, curia regis, founded at
Westminster by William I (r. 1066-87). Originally an advisory body of the barons, it
developed 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 role
in 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, especially
Henry II (r. 1154-89), sought to curb the power of the great barons by replacing
local 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 from
Anglo-Saxon times of the shire, or county, courts. Beginning in the 12th 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, a
circuit). 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 the
court decisions, or precedents, that form the basis of common law.

The Jury
One of the tools of royal justice was the Jury, which could only be summoned by
royal authority. In 1166, Henry issued the Assize of Clarendon, initiating a
procedure by which jurors were commanded to appear before a royal judge and
relate any knowledge they had of crimes or criminals in a given area. This sort of
presentment jury became widespread thereafter. Later Henry instituted a
procedure called the grand assize to determine which of two or more claimants had
the better right to a piece of land. Four knights elected twelve jurors who were
acquainted with the facts of the case and who, after visiting the site, informed the
court which claimant had the better right. Such procedures proved popular as an
alternative to judicial combat, or ordeal by battle, which was then used in the feudal
courts.

Writs
The royal court exerted its authority by issuing Writs, or written orders in the king’s
name, requiring some action to be taken by a defendant or by a local court. An
early 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 Latin
formula.
The king to the sheriff, greeting. Command N. to render to R., justly and without
delay, one hide of land in such-and-such a vill, which the said R. complains that the
aforesaid N. is withholding from him. If he does not do so, summon him by good
summoners 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 13th century: Common Pleas,
King’s Bench, and the Exchequer. During the 12th and 13th centuries, the justices
issued literally scores of new writs to settle issues before the court. A plaintiff at
one 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 his
case.

Actions
In addition to new writs, principally in common pleas concerning land, new
personal actions appeared, such as the action of account, which was used at first
by 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 the
benefit of the plaintiff. Another important action was trespass, which called upon a
defendant 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 term
before it expired.
Society is always changing, and sooner or later law must change to provide new
rules and remedies. A more or less standard example of the manuscript collections
of writs was printed in 1531, and thereafter printed editions of the register guided
lawyers in the drafting of writs until 1833, when forms of action were largely
abolished; by 1875 they were completely abolished.
The common law was not entirely confined to writs. The king in council might also
issue statutes restating or amending the decisions of the courts. Edward I is
remembered for his Statutes of Westminster (1275 and 1285) and the Statute of
Gloucester (1278). The second Statute of Westminster dealt at length with land
and inheritance; it also encouraged the creation of new writs to provide remedies in
cases where no law existed. “Whensoever from henceforth it shall fortune in the
Chancery, 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 in
making the writ...”
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RECORDS OF CASES
The records of actual cases tried in the courts of Common Pleas and King’s Bench
are the best evidence of the activity and continuity of the common-law courts. The
Public Record Office in London contains vast quantities of such records; many of
the bundles have never been opened. The case records contain details about the
cause of action, the names of the litigants, and the decision of the court. The
records show that as common law became more technical in the 14th century, a
body of professional lawyers arose, trained in the complexities of pleading cases in
court.
The first steps toward reporting cases were made in puzzling compilations called
Year Books (1292-1536). They usually stated the grievance of the plaintiff and the
answer of the defendant, followed by the arguments of counsel and, sometimes,
the court judgment. Before the invention of printing in the mid-15th century, it was
not unusual for lawyers to cite several cases to try to establish the traditional use of
a certain rule in like cases. A ruling in a single case, however, was not an authority
binding the court. The appearance of Burrow’s Reports about 1750 marked the
advent of something like the modern form of a court report. These reports made a
clear distinction between the facts of a case, the arguments of counsel, and the
judgment of the court, and provided at least an outline of the reasoning upon which
a decision was based.
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EQUITY
The common law administered in Common Pleas and King’s Bench lost its
flexibility at the end of the 13th century. Plaintiffs began to petition the king for
remedies, and the chancellor had the task of properly disposing of their requests.
By the end of the 14th century, the chancellor was presiding as a judge in his own
court of Chancery, and a branch of the law called equity began to grow as a
supplement to common law. The work of a court of equity was easily justified by
the argument that rules of law must of necessity be general, but that circumstances
are infinitely variable and require that in some cases the strict letter of the law be
set aside to avoid injustice or a result contrary to reason.
In various ways Chancery developed a character of its own. A brief comment on
the final decree in Chancery may illustrate a difference between common law and
equity. The judgment of a common-law court was either for the plaintiff or for the
defendant: one party won, the other lost. But in an equity court the plaintiff might
secure a general relief recognizing his rights and at the same time be asked to
fulfill some obligation to the defendant. A decree in equity could be drafted to
secure the relative duties and rights of the parties in line with the maxim, “He who
seeks equity must do equity.”
At the beginning of the 16th century, the Chancery was supplementing rules of
common law to arrive at results in line with a doctrine of conscience. An important
writing for this formative period was the dialogue Doctor and Student by
Christopher Saint-German (c.1460-1540). “Equytie is ordeyned,” the Doctor says,
“to tempre and myttygate the rygoure of the lawe . . . and so it apperyth that
equytie rather foloweth the intent of the lawe then the wordes of the lawe.”
So long as common-law courts were inflexible about matters of wills or trusts and
uses of land and contracts without a seal, equity courts filled a need. In Chancery a
mispleading was not fatal, and in cases where no remedy existed at common law,
the Chancery was free to act by what was called the law of right and conscience.
Equity supplemented the common law; it did not contradict it. Of the greatest
importance for an Englishman’s rights in property was Chancery’s enforcement of
trusts and uses. For example, if A grants property to B to hold for the use of C, the
common law would take B to be in seisin of a freehold; but Chancery would protect
the interest of C, the beneficiary. Chancery was also responsive to complaints
about fraud and deceit. In the administration of estates of the deceased and the
development of equitable interests in property, Chancery courts made significant
contributions to law in England.
At times the coexistence of courts of law and equity seemed to give English
subjects two kinds of justice, and from the 17th century onward reformers urged
that English law and courts be simplified. This finally came about in 1875, when a
single high court of justice was created. Other reforms abolished the writ system. In
the United States during the 19th century the majority of state constitutions provided
for one action at law and equity.
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TREATISES
Many lawyers of great learning, intellectual power, and literary skill have written on
the common law. Among these writers three would probably appear in any short list
of treatises.
The first was Henry de Bracton (d. 1268), a royal judge who served as a justice in
eyre courts and in the court of King’s Bench. His book De legibus et
consuetudinibus Angliae (“On the Laws and Customs of England”) was the first
systematic treatment of the common law. Bracton was strongly influenced by
Roman Law, as shown by the structure though not the substance of his treatise.
Thomas Littleton (c.1422-81), a well-known counsel, sergeant-at-law, justice of
assize in northern circuit, and justice of Common Pleas, wrote a treatise, Tenures,
the earliest printed treatise on English law. It is a masterful discussion of estates in
land and is notable for its excellent arrangement. Sir Edward Coke, himself a
treatise writer, who lived not quite two hundred years after Littleton, praised it as
“absolute perfection in its kind, and as free from error as any book that I have
known to be written of any human learning.”
Sir William Blackstone wrote four volumes of legal Commentaries (1765-69).
Although historians do not accept all of Blackstone’s historical materials, he is
universally admired for the boldness and completeness of his design, which was to
present a general sketch of the whole of English law. Blackstone’s work is the
classic treatment of the full development of the common law. He translated the
technical professional language of his authorities into readable English that
faithfully presents the heart of the matter.
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EXPANSION OF THE COMMON LAW

Common law crossed the Atlantic with the English language and served English
colonial settlements whenever conditions permitted. Occasionally it had to yield in
favor of religious beliefs or local customs. Judges in early America often lacked
professional knowledge of the law; to be a man of property respected in his own
community was sufficient qualification for the bench.
Prior to 1776 a few colonists went to England for legal education at the Inns of
Court. The victory of the colonies in the American Revolution did not result in a
rejection of English common law; however, the attitudes of individual Americans
toward common law were full of contradictions. At one extreme were men like John
Dudley, associate justice of the Supreme Court of New Hampshire (1785-97), who
believed that “common sense is a much safer guide for us than common law.” He
boasted that he had read neither Blackstone nor Littleton, and never would. At the
other extreme was George Wythe law tutor to Thomas Jefferson and the first
professor of law at the College of William and Mary. Among his students were John
Marshall, James Monroe, Edmund Randolph, and Henry Clay. Wythe used
Blackstone as a textbook, and his lectures compared English and Virginia law.
In the United States in the early 19th century, lawyers faced considerable hostility
and suspicion. On one hand, the public demanded codification of the law as a
means of achieving simplicity and certainty. On the other hand, it sought to
democratize the profession of law by removing educational requirements for a
license to practice. The latter proposal was actually put into effect in New
Hampshire (1842), Maine (1843), Wisconsin (1849), and Indiana (1851). In these
states any person could practice law who was a citizen more than 21 years of age,
or a resident of the state, or a voter “of good moral character.” It was argued that a
citizen had the natural right to earn a living in any business, profession, or calling.
Moreover, the abundance of open land profoundly affected American society,
producing a fairly equal distribution among many landowners. On the frontier it was
easy to conclude that common sense was enough.
Inevitably, the development of law in the United States came to reflect much that
was distinctive in the American environment. For example, very early in the history
of the United States, American jurists favored the recognition of so-called common-
law marriages. James Kent stated, in Fenton v. Reed (1809), that “A contract of
marriage per verba de presenti {words in the present tense, for example, “I do.”}
amounts to an actual marriage, and is as valid as if made in facie ecclesiae {in
church}.” Free consent, the meeting of minds, made a valid contract. Kent’s opinion
was almost universally accepted. On the frontier, where churches were few and
ordained ministers scarce, common-law marriage was expedient.
The Married Women’s Property Act of 1875 and statutes of state legislatures gave
an American wife control of her separate earnings. This legislation broke up
irreparably the older common-law doctrine of the unity of husband and wife, a
doctrine that had given the husband control of his wife’s property.
American legal reformers also sought to replace laws created by judges with
legislation in broad areas. The 19th-century jurist David Dudley Field drafted a civil
procedure code, a penal code, and a criminal procedure code that were adopted
by New York State and widely copied elsewhere. A Uniform Commercial Code has
been adopted by every state except Louisiana, which has a civil-law system
reflecting its French tradition.
Although there are many differences between English common law and American
variations on it, the legal system of the United States bears many important marks
of the common law. The professional language used by American lawyers is
understood in Great Britain. Printed reports of U.S. cases show that courts have
applied and still apply the doctrine of precedent (Stare decisis) associated with
common law. Rules of equity supplement the common law in Great Britain, and an
action at law and equity is used in the United States. In the United States, persons
who fear that they may be deprived of their rights will demand “due process of law”
and an observance of “the rule of law,” principles essential to common law, and
juries are judges of the facts in important cases. The United States thus remains
one of the common-law countries.
Entire Selection from “The Grolier Multimedia Encyclopedia”
Credits to Arthur R. Hogue

Bibliography: Allen, Carleton, Law in the Making, 7th ed. (1964); Friedman,
Lawrence M., History of American Law, 2d ed. (1986); Hogue, Arthur, Origins of
Common Law (1966; repr. 1986); Holmes, Oliver Wendell, Jr., The Common Law,
ed. by Mark deW. Howe (1881; repr. 1963); Milsom, S. F. C., Studies in the History
of the Common Law (1985).