An Overview of Common Law

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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 gr grea eatt sy sys stems tems of law law have have sp spre read ad over over the the West Wester ern n worl world. d. Ci Civi vill law law, desce de scend nded ed from from the laws laws of the Roma Roman n Empir Empire, e, is used used by most most Europ Europea ean n 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, Rather, it evolved case after case in court decisions; decisions; the common-law 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 an d comm commen entar taries ies on the comm common on law, law, and altho although ugh these these comm command anded ed 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 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 increase increased, d, 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 thes e local local commun communal al courts courts were were visited visited at roughly roughly 7-year intervals intervals by royal royal  judges sent from Westminster on a set route or eyre (from the Old French eire, a circuit). Royal justice was made available available to a vast new segment of the population, 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 roy al author authority ity.. In 1166, 166, Henry Henry issue issued d the Assize Assize of Clar Clarend endon on,, ini initia tiatin ting g 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  pr pres esen entm tmen entt jury jury beca became me wi wide desp spre read ad ther therea eaft fter er.. Late Laterr Henry Henry inst instit itut uted ed 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 thi s was was calle called d the wr writ it Praec Praecipe ipe (c (com omma mand nd), ), from from the first word word of the the Latin 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.toisbe withholding him. If he on does so,the summon by good summoners before mefrom or my justices thenot daydo after octavehim 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 th century: Common Pleas, King’s Bench, and the Exchequer. During the 12 th 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 addit additio ion n to new new wr writs its,, princ principa ipally lly in commo common n plea pleas s conce concern rning ing land, land, new 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 iss ue statut statutes es resta restatin ting g or amen amendin ding g the decis decision ions s of the courts courts.. Edwa Edward rd 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 noinlaw frominhenceforth it shallunder fortune the Chancery, that oneexisted. case a “Whensoever writ is found, and like case falling likeinlaw, 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 th

records show that as common law became more technical in the 14 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-15 th 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 comm The common on law admi adminis nister tered ed in Comm Common on Plea Pleas s and and King King’s ’s Bench Bench lost lost its th flexibility at the end of the 13 century. Plaintiffs began to petition the king for  remedies, the14 chancellor task of properly disposing theirin requests. th By the endand of the century,had thethe chancellor was presiding as aofjudge 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 16 th century, the Chancery was supplementing rules of  common law to arrive at results in line with a doctrine of conscience. An important wr writ itin ing g fo forr th this is form format ativ ive e peri period od was was the the dial dialog ogue ue Doct Doctor or and and Stud Studen entt 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 freethe to act by whatlaw; wasit called thecontradict law of right conscience. Equity supplemented common did not it. and Of the greatest

 

importance for an Englishman’s rights in property was Chancery’s enforcement of  trusts and uses. For example, if A grants 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 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 ey re courts rts and in the the court of King’s g’s Bench. His book De legibu ibus et consuetudinibus Angliae (“On the Laws and Customs of England”) was the first systema sys tematic tic treatme treatment nt of the common common law. law. Bracton Bracton was strongly influenced influenced by Roman Law, as shown by the structure though not the substance of his treatise. Thomas Littleto Thomas Littleton n (c.1422(c.1422-81), 81), a well-kn well-known own counsel counsel,, sergeant sergeant-at-at-law law,, justice justice of  assize in northern circuit, and justice of Common Pleas, wrote a treatise, Tenures, 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 William Blacksto Blackstone ne wrote wrote four volumes volumes of legal legal Comment Commentarie aries s (1765-69 (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 techn tec hnica icall pr profe ofess ssion ional al langu language age of his his autho authorit rities ies into into read readab able le Engli English sh that 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 itserved colonial settlements whenever conditions permitted. Occasionally had to English 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), Dudley (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 Marsh Mar shal all, l, Jame James s Monroe Monroe,, Edmu Edmund nd Rand Randolp olph, h, and and Henry Henry Clay Clay.. Wyth Wythe e us used ed Blackstone as a textbook, and his lectures compared English and Virginia law. In the United States in the early 19th century century,, lawyers faced considerable considerable hostility and suspicion. On one hand, the public demanded codification of the law as a mean me ans s of ac achie hievin ving g si simp mplic licity ity and certa certaint inty y. On the other other hand, hand, it soug sought ht to democratize the profession of law by removing educational requirements for a lice licens nse e to pr prac acti tice ce.. The The latt latter er prop propos osal al was was actu actual ally ly put put into into effe effect ct in New 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 resident of the state, or a voter “of good moral character.” character.” It was argued that a citizen had the natural right to earn a living in any business, profession, or calling. Moreover More over,, the abundan abundance ce of open open land land profoun profoundly dly affecte affected d America American n society 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. environment. For example, example, very early in the history of the United States, American jurists favored the recognition of so-called commonlaw 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 Property Act of 1875 and statutes of state legislature legislatures s gave an Ameri America can n wi wife fe contro controll of her her sepa separat rate e earn earning ings. s. This This legisl legislati ation on broke 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 America n legal legal reforme reformers rs also sought sought to replace replace laws created created by judges judges with th legislation in broad areas. The 19 -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 adop been adopte ted d by ev every ery state state excep exceptt Loui Louisia siana, na, which which has a civilcivil-law law syste system m reflecting its French tradition. Although there are many differences between English common law and American variations variation s on it, the legal system of the United States bears many important important marks of the comm common on law. law. The The profe professi ssiona onall lang languag uage e us used ed by Ameri America can n lawye lawyers rs is understood in Great Britain. Printed reports of U.S. cases show that courts have applied apply the doctrine of precedent (Stare commonand law.still Rules of equity supplement the common lawdecisis) in Greatassociated Britain, andwith an action at law and equity is used in the United States. In the United States, persons 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 Bibli Bibliog ograp raphy: hy: Allen, Allen, Carle Carleto ton, n, Law in the Makin Making, g, 7th ed. (1964); (1964); Friedma Friedman, n, 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).

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