Gavin Howe
The English common law, which originated in the early Middle Ages, was established in the king's court (Curia Regis) in Westminster, London. The common law, so named because it was common to all the king's courts across England, was developed in the centuries following the Norman Conquest in 1066. The period of King Henry II, from 1154 to 1189, saw the regular issuance of new laws, known as the assizes, which abolished older traditions and established new legislation. Henry II also created a unified court system, curbing the power of canonical (church) courts, and established the Grand Jury, a coherent system for prosecuting crimes based on cooperation between local communities and royal judges. The Magna Carta, which nobles, clergymen, and commoners forced King John to accept in 1215, further solidified the concept of common law by implying that the law of the nation was higher than the king's will.
| Characteristics | Values |
|---|---|
| Origin | The common law originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. |
| Name | It was named as such because it was common to all the king's courts across England. |
| Development | Common law was developed by judges applying both statutory law and established principles derived from the reasoning from earlier decisions. |
| Basis | Common law constitutes the basis of the legal systems of Australia, several Caribbean jurisdictions, the United States, and many other English-speaking or Commonwealth countries. |
| Judicial Precedent | It relies heavily on judicial precedent, where courts follow precedents established by previous decisions. |
| Influence | The influence of the Catholic Church and Canon law helped preserve Roman legal concepts. |
| Unification | Henry II established a unified court system, curbing the power of canonical (church) courts. |
| Magna Carta | The Magna Carta, signed in 1215, established a system of constitutional government, implying that there was a law higher than the king's will. |
| Equity | The system of equity, administered by the Lord Chancellor, was frequently in conflict with common law. |
| Written Documentation | Emphasized written documentation, particularly royal 'writs'. |
| Jury | Utilized local juries to establish both law and fact. |
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What You'll Learn
The Norman Conquest of 1066
Edward, who had almost certainly designated William as his successor in 1051, was involved in a childless marriage and used his lack of an heir as a diplomatic tool, promising the throne to different parties throughout his reign, including Harold Godwineson, later Harold II, the powerful earl of Wessex. Edward died in January 1066 and was succeeded by his brother-in-law, Harold Godwinson.
The Norwegian king Harald Hardrada invaded northern England in September 1066 and was victorious at the Battle of Fulford on September 20, but Godwinson's army defeated and killed Hardrada at the Battle of Stamford Bridge on September 25. Three days later, on September 28, William's invasion force of thousands of men and hundreds of ships landed at Pevensey in Sussex in southern England. William had secured support for his invasion from both the Norman aristocracy and the papacy, assembling a force of 4,000–7,000 knights and foot soldiers.
On October 13, Harold, hurrying southward with about 7,000 men, approached Hastings. Surprised by William at dawn on October 14, Harold's wall of highly trained infantry initially held firm in the face of William's mounted assault. However, when rumours of William's death began to spread, the Norman cavalry panicked and fled. The battle lasted all day, and when Harold was eventually killed, the English fled, leaving William to assume the throne of England.
William was crowned in Westminster Abbey on Christmas Day, 1066. Sporadic indigenous revolts continued until 1071, with the most serious uprising in Northumbria (1069-70) suppressed by William himself, who then devastated much of the north. William's victory destroyed England's links with Scandinavia, bringing the country into close contact with the Continent, especially France. The most radical change was the introduction of land tenure and military service, with William dividing the country among about 180 Norman tenants-in-chief and innumerable mesne (intermediate) tenants, all holding their fiefs.
The Norman Conquest brought about significant changes in English society, including the elimination of slavery, the spread of towns and nucleated settlements, and the transformation of building styles and people's names. The impact of the conquest on the lower levels of English society is difficult to assess, but it likely accelerated processes already underway, such as the loss of status for free peasants and the decrease in women's rights.
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Henry II's court system
The Assizes were instrumental in settling property disputes in local areas, ensuring that justice was delivered consistently across the realm. This marked a departure from the previous system, where legal matters were often handled inconsistently by local courts and barons. Henry's reforms introduced the concept of common law, which was based on the decisions made in actual cases rather than laws crafted by politicians or the monarch.
The increased use of juries, another facet of Henry's reforms, empowered ordinary citizens to play a pivotal role in the judicial process. This shift in decision-making authority from lords to juries exemplified the democratic spirit of the evolving legal system. Henry's reforms also clarified and asserted the king's traditional rights, including the right to try clergy accused of serious crimes in royal courts instead of church courts.
Henry's court system laid the foundation for English common law, which is still recognised today for its fairness and consistency. The decisions made by judges in the Assizes became law, and future judges were tasked with referencing these precedents when rendering new judgments. This iterative process ensured a uniform legal framework across England, contributing to a more equitable and just society.
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The Magna Carta
The charter was annulled by Pope Innocent III, leading to the First Barons' War. King John died during the war, leaving his young son, Henry III, as his heir. The regency government of Henry III reissued the document in 1216, stripped of some of its more radical content, in an unsuccessful bid to build political support. The document was reissued again in 1217 and 1225, and it became part of English political life, typically renewed by each monarch.
The enduring influence of the Magna Carta comes from its more general clauses, which established a system of constitutional government and provided the foundation for individual rights in Anglo-American jurisprudence. The right to petition and habeas corpus, and the concept of due process, are derived from the Magna Carta, which also served as a forerunner of Parliament, the Declaration of Independence, and the US Constitution.
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The Court of Common Pleas
The English Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered legal disputes between subjects that did not concern the king. The Court of Common Pleas was established in the late 12th to early 13th century after the Magna Carta of 1215 mandated in Section 17 that common pleas be heard in "some fixed place". This ensured that there would be a fixed location that claimants and defendants could travel to, rather than the source of justice moving from place to place as the king did. The court's creation also served to curb the power of canonical (church) courts.
In the 19th century, the superior courts of Westminster were merged by the Supreme Court of Judicature Act of 1873 into a single High Court of Justice, which marked the end of the Court of Common Pleas.
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Influence of Roman Law
Roman law, the legal system of ancient Rome, has had a significant influence on the development of law in most Western civilisations and parts of the East. It forms the basis for the law codes of most continental European countries and their former colonies, including Latin America, and Ethiopia.
English common law, alongside Anglo-American common law, was influenced by Roman law, particularly in the adoption of a Latinate legal glossary. Elements of Romano-canon law were present in England in ecclesiastical courts and, to a lesser extent, through the development of the equity system. In the early 19th century, English judges and lawyers were more willing to adopt rules and ideas from continental jurists and Roman law.
Roman law was characterised by a systematic and organised approach to legal matters, classifying legal issues into distinct categories, such as property law, contract law, and tort law. This classification provided a structured framework for legal analysis. In Roman law, judges were responsible for applying the law, interpreting and enforcing existing legal provisions, rather than creating new legal principles. Roman law was primarily developed through written legal codes and the works of jurists, such as Justinian's Corpus Juris Civilis.
In contrast, English common law is known for its flexibility and adaptability, allowing judges to interpret and apply the law according to the specific circumstances of each case. Judges play a crucial role in the development of common law, interpreting statutes, filling in gaps in the law, and setting precedents that are binding on lower courts. Common law relies on judicial precedent and gradual development through court decisions, while Roman law relies on comprehensive legal codes.
The influence of Roman law can be seen in the former colonies of Western European countries, such as Spain and Portugal, while English common law has influenced the legal systems of former British colonies like Australia and India.
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Frequently asked questions
No single king established English common law. It emerged in the centuries following the Norman Conquest in 1066, with the first English treatise on common law being written between 1187 and 1189.
English common law originates from the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066.
King John was responsible for the Magna Carta, which was sealed in 1215.
Yes, Henry II established a powerful and unified court system, which curbed the power of the church courts. He also regularly issued new laws, known as assizes, and oversaw the publication of the first English account of legal proceedings.
The Oxford English Dictionary's definition of common law mentions Richard I, defining the concept of "time immemorial" as being any time before his accession to the throne in 1189.
