An Overview of “Common Law”

LINKSDEVELOPMENT 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.

Go to Top

The King’s CourtAt 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 12 th 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 JuryOne 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.

WritsThe 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.

ActionsIn 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...”

Go to Top

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 14 th 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.

Go to Top

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 17 th 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.

Go to Top

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.

Go to Top

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).