THE HISTORY AND

DEVELOPMENT OF ENGLISH
COMMON LAW
 What is common law
1. It refers to a system of law based upon English
customs, usages and traditions which were
developed over centuries by the English courts.
 The notion of English laws/customs – UK is made
of Great Britain and Northern Ireland. Great
Britain in turn is made of England, Scotland and
Wales.
 Therefore, English CL encompasses the legal
systems of the United Kingdom (except Scotland)
 Commonlaw family embraces countries
like……………..
 Birth of English Common Law
 The history of the Common Law can be divided
into three stages:
1. 1066-1485: the formation of the Common Law
2. 1485-1832: the development of Equity
3. 1832-present day: the modern legal system of
England & Wales
 Pre-Norman conquest
 Before 1066 laws consisted of local customs applied by assemblies of free men
known as county courts
 Each (feudal) area applied a different legal system.
 e.g. trial by ordeal - fire and water - with God being seen as determining guilt
through the result.
 Trail by combat introduced in 1066
 Feudalism referred to medieval Europe’s
dominant social system where land was held by
nobility was assigned lands by the crown in
exchange of military service.
 The nobles allowed the common people, especially
peasants, to stay and farm in the land owned by
them and give them military protection in
exchange of their service in the form of labor or a
share of the crop produce.
 Norman’s conquest and early
centralisation of courts
 Norman conquest of England in 1066 – birth of English
law
 William the Conqueror (1028-1087), after Battle of
Hastings introduced a centralised system of
administration
 Introduced a systematic form of feudalism to
England, so that in theory all land was held from the king.
 England’s rulers and nobility continued to speak French
for almost 300 years.
 Despite these changes, Norman kings like Henry I (1100-35) promised in their
coronation oaths to uphold traditional laws and customs, including those of
the pre-Conquest era.
 Norman I, established Curia Regis ( the King’s Court) - king’s court was
itinerant, i.e., it met wherever the king happened to be.
 It had combined judicial, executive and legislative powers
 Where similar issues arose, earlier solutions were applied, thereby developing
a system of judicial precedent
 Church and state separated.
 Delegating the royal adjudicative powers to itinerant justices, organised in
circuits, who would travel around the country and hold sittings to hear and
settle cases to be tried in the county towns and enforce the king’s rights.
 The 1st of these courts were meant to raise revenue by enforcing the financial
rights of the crown and by causing “justice to be done” by payments of fines,
forfeitures, etc.

Henry II (1154-89)
 The Exchequer and permanent royal courts (the Courts of the King’s Bench
and of Common Pleas) were, located at Westminster
 Curia Regis

Common pleas King’s Bench

Exchequer
(common (king’s
(taxation)
disputes) interests)
 The Curia Regis eventually split into three royal courts: the
Exchequer, the Common Pleas and the King’s Bench
a) the Exchequer - deals with disputes concerning taxation
b) the Common Pleas - disputes of ordinary citizens. 1215 AD
Magna Carta
c) the King’s Bench – dealt with issues where the crown had
interests in. The king himself presided, as the preserver of
the peace
 Courts were centralised in Westminster until 1972
 Twice yearly royal judges went on a circuit to hear local disputes
 On circuit judges were assisted by locals – jury system evolved from this
practice
 In difficult cases judges reserved the judgment in order to consult with
colleagues
 15th -16th century difficult matters to be heard by all judges of England
(12)
 Where similar issues arise, earlier solutions were applied = precedent
 Development of appeal = Common Pleas appeals were sent to the King’s
Bench
 Jury system
 Early jurors in England acted as witnesses providing sources of
information on local affairs – not on purely legal issues
 Introduced by Henry II (1154 – 1189 AD) as weapon of justice
[Assize of Clarendon 1166 and the Assize of Northampton
1176)
 Initially used only in the King's courts, since he alone could
compel the taking of an oath.
 By the Grand Assize and other petty assizes, Henry ordained
that in a dispute about the title to land a litigant might obtain a
royal writ to have a jury summoned to decide the matter
The features
1. They were men drawn from the neighbourhood who were taken to have
knowledge of all the relevant facts (anyone who was ignorant was rejected)
and were bound to answer upon their oath and according to their
knowledge which of the two disputants was entitled to the land.
2. When a party got twelve oaths in his favour, he won
Consequences – 2 rules established
1. Jury is composed of 12 men
2. The verdict of the twelve must be unanimous
 He further introduced the grand jury
 Here, he required the jury to report any of their neighbours whom they
suspected of committing certain crimes.
 This was the origin of the bill of indictment and the grand jury;
 The grand jury, though in the nineteenth century its work was superseded by
an efficient police force and the committing magistrates, survived until 1933.
 Assize of Clarendon, which in 1166 devised the procedure, marks the
introduction of the jury into the criminal process.
 In November 1215 Pope Innocent III prohibited trial by ordeal
 Issues : separation of powers between jury and judge and reasons of
verdict.
 Throughout its development, the judges have kept the jury to that nominally
subordinate role, that is to help him to arrive at a right decision. The verdict
has no legal effect until judgment is entered upon it.
 The jury's function was always, and still is, simply to answer the question so
that judgment may be given.
 Jury does not give reasons to its verdict. It must harken to the evidence
presented and provide a yes or no answer to the guiltiness of a party.
Composition and qualification
 At common law the qualification was that the juror should be a freeman, not a
villein or an alien.
 But from the earliest times statutes have imposed a property qualification as
well.
 The qualifications in force at present were settled in 1825
 A juryman must still be either a property owner or a householder. Women
not allowed until 1919
 Age limit - twenty-one to sixty. And the following were exempted are peers,
members of Parliament, county and town councillors, lawyers, clergymen,
medical men of all sorts (including dentists, chemists and veterinary
 surgeons), soldiers and sailors, policemen and post office servants.
 Special jury - “persons of higher degree’ where used when the
causes were of too great a nicety for the discussion of ordinary
freeholders." Juries Act of 1870 - 1949
 English procedure had two distinct characteristics.
1. Oral procedure during trial – illiteracy of jury
2. Once the jury had issued its verdict, appeal against the
decision was in theory impossible and in practice very difficult

 The jury system led to the development of strict and formal

rules of evidence- coz the jury could easily be swayed.
 The rigid distinction between the trial and pre-trial process
and between questions of fact and questions of law result
from the existence of the jury.
 Question of fact: Did Mr. and Mrs. Jones leave
their 10-year-old child home alone with their baby
for 4 days?
 Question of law: Does leaving a baby with a 10-
year old child for 4 days fit the legal definition of
child neglect?
Reading material
1. Dwight Foster The Advantages of the Jury System North American Review Vol.
135, No. 312 (Nov., 1882), pp. 447-460
2. Charles W. Douglas What to Do When the Jury Gets It Wrong Litigation Vol. 33,
No. 1, BALANCING (Fall 2006), pp. 20-25
 The civil procedure - writ system
 It was the basis of a civil action
 To begin an action, a plaintiff has to obtain a writ
 A writ was a written command issued by the Lord
Chancellor in the King’s name, ordering the defendant to
appear in court and show cause why the plaintiff should not
be given the relief sought
 If there is no writ to cover the type of claim, then there will
be no remedy/ action
 Each writ had certain procedures and remedies
 The whole law was contained in the register of
writs
 Provisions of Oxford, 1258 AD prohibited the
issuing of new writs
 The Statute of Westminister 1285 AD – provided
that in similar cases, the Chancery may issue new
writs.
 What was the effect of the prohibition?
 Some of the more common writ types still in
use are:
1. Habeas corpus: A legal document ordering a
person who has been arrested to come
before a court.
2. Mandamus: This directs a government
department or official to take an action.
 Defects of the writ system
1. Writ system was rigid – writs for limited cases
2. Procedural challenges. Each writ had a specific
procedure
3. Remedies were inadequate – only damages
4. Flimsy defences could stand
- These led to the development of equity
 Development of equity
What is equity
 Equity was defined by Lord Cowper in Dudley v
Dudley (1705) as:

“....now Equity is no part of the law, but a moral virtue,

which reforms the hardness of the law; it does also
assist the law where it is defective and weak...Equity
therefore does not destroy the law nor create it…”
 Development of equity
 Disappointed litigants began to petition the King as
the "Fountain of Justice“
 Initially the King heard the matter himself. Later
passed the work to the Chancellor as the "Keeper
of the King's Conscience".
 The Chancellor was usually a clergyman, generally a
bishop, and learned in the civil and canon law.
 Eventually, the Court of Chancery was set up to deal
with these petitions.
 Cases were decided in the light of their merits,
conscience and fair dealing, disregarding the formalities
and technicalities of common law
 The principle of equity then and today moderates and
qualifies the hardness of the law
 Equity created new remedies:
1. Specific performance, which is an order telling a party to perform
their part of a contract. This was useful where damages were not
adequate.

2. Rectification, which allowed a written document to be changed if it

did not represent the actual agreement made by the parties.

3. Rescission, which allowed parties to a contract to be put back in

their original position in the case of a contract induced by a
misrepresentation.
4. Injunctions, an order to stop a person doing a particular act, like
acting in breach of contract (a prohibitory injunction).
 Effect of Equity court = rivalry between Court of Equity
and other courts
 E.g. Earl of Oxford's Case (1616) 1 Rep Ch 1 in which the
common law court gave a verdict in favour of one party
and the Court of Equity then issued an injunction to
prevent that party enforcing that judgement. It was
decided that in cases of conflict between common law
and equity, equity was to prevail.
 Common law was fused with equity by the Supreme Court
of Judicature Acts of 1873-5.
 Now utilised by one and the same court
 Common law functions as an adversarial system, a
contest between two opposing parties before a
judge who moderates.
 A jury of ordinary people without legal training
decides on the facts of the case.
 The judge then determines the appropriate sentence
based on the jury’s verdict.
 Reception of English law
1. Colonisation
2. Trade missions during dominance of the British empire
Key features of common law
1. Case based system
 the law has been dominantly created by judicial decisions
 Heavy reliance on cases when determining legal disputes according to their
individual circumstances
 A lawyer in common law starts with the actual case and compares it with
the same or similar legal issues that have been dealt with by courts in
previously decided cases, and from these relevant precedents the binding
legal rule is determined by means of induction.
 In legal education there is emphasis on learning cases, distinguishing them,
etc
2. Doctrine of judicial precedent, binding and strictly adhered to
 A precedent is a principle or a rule that was declared or laid down in a
previous legal case.
 Means the process whereby judges follow previously decided cases where
the facts are of sufficient similarity.
 The use of this doctrine is captured by this maxim : stare decisis ie, to stand
by the decided
 The decision or judgement of a judge may fall into two parts: the ratio
decidendi (reason for the decision - the ratio decidendi of a case is the
principle of law on which a decision is based) and obiter dictum (something
said by the way – passing remarks).
 The doctrine has hierarchical application – lower courts bound by decisions
of courts above it
 3. No substantive or structural private/public law distinction
 Common law applies to everyone including the state
 In English common law, the distinction is on the procedure to be used to
enforce the public duties of the agency or the private rights of the citizens
 Questions of public body’s functions is through application of judicial review in
the same ordinary courts
 Specialist tribunals are subjected to the normal review and appeal powers of
the ordinary courts
 Judicial review is a type of court proceeding in which a judge reviews the
lawfulness of a decision or action made by a public body.
 It challenges the way in which a decision has been made, rather than the rights
and wrongs of the conclusion reached
 4. Legal style.
- Meant to solve disputes
- Common law ‘unwritten’ yet written
- Statutes are intended to clarify existing laws
- English judges’ primary role is to resolve disputes.
- Primary attention is of facts, examine legal issue and make
rulings based on careful study whether that case ‘fits’ previously
decided cases
 5. Uniform body of courts which settle all types of disputes
- Prerogative writs such as mandamus enabled administrative decisions to be
challenges , therefore rendered unnecessary any separate administrative
courts
6. Adversarial system
- Parties control the proceedings and emphasis on presentation of oral
arguments – more participatory
- Judges ensures that the proceedings are conducted fairly
- The lawyer’s role is partisan – represent interests of the clients
- Lawyers decides the evidence to present and such may be supplemented by
‘expert witnesses’
NB: List not exhaustive