Gavin Howe
During the Middle Ages, common law emerged as the foundation of the legal traditions of English-speaking countries, contrasting with the Civil Law traditions of continental Europe. The term 'common law' refers to the body of customary law that was administered by the common-law courts of England from the Middle Ages onwards. The English common law originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court established in Westminster, near London. The twelfth century marked a shift from local, informal power structures to formal government, with the reign of Henry II (1154-1189) witnessing the establishment of permanent royal courts and the expansion of royal justice throughout the country and across social classes. This emerging body of national law, known as Common Law, aimed to unify legal norms across diverse regional and local laws, emphasising written documentation, peaceful dispute resolution, and a clear hierarchy of courts.
| Characteristics | Values |
|---|---|
| Origin | The English common law originated in the early Middle Ages in the King's Court (Curia Regis) |
| Location | Westminster, near London |
| Basis | Procedural remedies rather than substantive rights |
| Development | Developed primarily by judges rather than legislators until the late 19th century |
| Formation | Largely formed after the Norman Conquest of 1066 |
| Influence | Influenced by the Anglo-Saxons and the Germanic peoples of northern Europe |
| Local Customs | Local customs governed most matters, with the church playing a significant role in government |
| Formal Government | Transition from local informal power arrangements to formal bureaucratic government in the 12th century |
| Royal Courts | Establishment of permanent royal courts, such as the Court of the King's Bench and the Court of Common Pleas |
| Geographic Expansion | Expansion of royal justice throughout the country, reaching all social classes |
| Written Documentation | Emphasis on written records, particularly royal 'writs' |
| Dispute Resolution | Focus on peaceful resolution of disputes |
| Juries | Introduction of local juries to establish both law and fact |
| Court Hierarchy | Clear hierarchy of courts established |
| Land Law | Detailed rules for land occupation, with primogeniture becoming a characteristic |
| Statutes | Passage of statutes in the 13th century to regulate matters like property damage and tenant rights |
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What You'll Learn
The shift from local power to formal government
In the Middle Ages, common law emerged as a conservative body of national law that incorporated customary norms of the law of crime, family, property, and inheritance. This shift from local power to formal government occurred in the twelfth century across northwestern Europe, including England.
Previously, local, informal power arrangements prevailed under customary law. The king's court, or Curia Regis, was itinerant, meeting wherever the king happened to be. The Anglo-Saxons, particularly after the reign of Alfred the Great (871), had a set of rules similar to those used by the Germanic peoples of northern Europe, with local customs governing most matters and the church playing a significant role in government.
However, the twelfth century marked a transition to formal government organized along bureaucratic lines. This shift was particularly evident during the reign of Henry II (1154-1189) in England. Henry II established permanent institutions, including the royal treasury (the Exchequer) and permanent royal courts (the Courts of the King's Bench and of Common Pleas) in Westminster, near London.
The establishment of these institutions expanded royal justice geographically and socially. It extended beyond the highest-ranking nobles, who previously had exclusive access to the king's court. The judges of the new Norman court, which included clergy and statesmen, "declared" the common law. They travelled to provincial towns and imposed the law of Westminster in both civil and criminal cases, often overriding local customs.
The emergence of common law as a unified and consistent legal framework across England marked a significant shift from local power to formal government. This transformation expanded the reach of royal justice and established a more centralized and standardized legal system.
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The role of the Church
During the Middle Ages, the Catholic Church played a pivotal role in shaping legal systems and influencing the concept of common law. The Church's influence extended beyond spiritual matters, and it became a dominant force in the social, political, and legal landscape of medieval society. Here's an overview of the Church's role during this period:
The Church as a Legislative Power: In the absence of a centralized state legislature, the Church filled the legislative vacuum and became a primary source of law. Canon law, or ecclesiastical law, referred to the body of laws and regulations established by the Church. These laws governed the conduct of clergy and laity alike and covered a wide range of topics, including marriage, inheritance, property rights, and criminal matters. Canon law was developed and interpreted by ecclesiastical courts and applied uniformly across Christendom, providing a sense of legal consistency in an otherwise fragmented feudal system.
Ecclesiastical Courts: The Church established its own court system, separate from secular courts, to enforce canon law. Ecclesiastical courts had jurisdiction over matters pertaining to church doctrine, morality, and discipline. These courts were often preferred by litigants because they offered advantages that secular courts did not, such as faster procedures, lower costs, and the perception of greater fairness and consistency in their judgments. The Church's court system became so influential that even secular matters were sometimes brought before these courts.
Interpretation and Application of Secular Laws: Beyond enforcing canon law, the Church also played a significant role in interpreting and applying secular laws. Clerics, well-versed in both canon and civil law, often served as advisors to secular rulers, helping to draft laws and interpret existing ones. In some cases, the Church even asserted its authority over secular laws, claiming the power to nullify laws that conflicted with church doctrine or moral teachings.
Preserving Knowledge and Educating Lawyers: Monasteries and cathedral schools became centers of learning and legal scholarship during the Middle Ages. Monks and clerics studied and copied legal texts, ensuring the preservation and dissemination of legal knowledge. These scholarly pursuits laid the foundation for the development of medieval universities, where law was taught as a distinct discipline. The Church played a crucial role in educating and training lawyers, who often received their legal education in these ecclesiastical institutions.
Influencing Moral and Ethical Standards: The Church exerted a profound influence on the moral and ethical standards of medieval society. Through its teachings and doctrines, the Church shaped ideas of right and wrong, justice, and fairness. Concepts such as natural law, which asserted the existence of a universal moral order, were deeply influenced by Christian theology. The Church's emphasis on moral principles and justice had a lasting impact on the development of legal systems and the evolution of common law.
Sanctioning and Legitimizing Rulers: The Church played a pivotal role in legitimizing the power of medieval rulers. Through ceremonies, such as coronations, the Church bestowed divine sanction on monarchs, reinforcing their authority. The concept of the "divine right of kings," which asserted that monarchs derived their authority from God, further solidified the alliance between church and state. This mutual dependence influenced the development of laws and the administration of justice, with the Church often acting as a moderating force on secular power.
In conclusion, the Catholic Church's influence on common law in the Middle Ages was extensive and multifaceted. It shaped legal systems, educated lawyers, interpreted laws, and provided a sense of moral and ethical foundation for justice. The Church's legislative, judicial, and educational roles made it a dominant force in medieval society, influencing both secular and religious aspects of life during this period. The interplay between church and state, canon law and common law, contributed to the complex and evolving legal landscape of the Middle Ages.
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Land law
Land was the most important form of wealth in the Middle Ages, with the English economy largely dependent on agriculture. Land ownership was the basis of political power, and land was held under a chain of feudal relations. The king was at the top of this chain, followed by aristocratic "tenants-in-chief", intermediate tenants, and finally the tenant "in demesne", who occupied the property. Each piece of land was held under a particular condition of tenure, in return for a certain service or payment.
The rules governing the terms by which land was held were initially developed in local lord's courts, which were held to manage the estates of the lord's immediate tenants. The emergence of improved remedies in the King's Court during the late 12th century led to the elaboration and standardization of these rules, marking the effective origin of common law. By the 13th century, three central courts—Exchequer, Common Pleas, and King's Bench—applied the common law.
The procedures of the developing common law, especially those connected with rights in real property, were popular with the landowning classes. Manor courts, which were attended by tenants of the manor, including unfree peasants (villeins), observed 'customary law', which was peculiar to each manor. Villeins held land in tenure from the manorial lord in exchange for labour services and other obligations. Villein land ultimately belonged to the lord, not the tenant, and the manor courts protected the lord's interests above all. However, villein peasants generally enjoyed security of tenure, protection against eviction, and the expectation that their heirs would inherit.
The Commons Act of 1236 allowed the Lord of a Manor to enclose any manorial land that had previously been common, and the Statute of Westminster of 1285 formalised the system of entail so that land would only pass to the heirs of a landlord. The Statute Quia Emptores Terrarum of 1290 allowed alienation of land only by substitution of the title holder, preventing the creation of further sub-tenants.
Succession to tenancies was regulated by a system of different "estates", or rights in land, which determined the duration of the tenant's interest. Land could be held in fee simple, meaning any heir could inherit, or in fee tail, which could only pass to direct descendants. Life estates, or tenancies lasting only for one person's lifetime, could also be created. Title to land was transferred by a formal ritual rather than by deed, providing publicity for such transactions.
The first "textbook" of English law, Littleton's Tenures, written by Sir Thomas Littleton and originally published in 1481, summarised the detailed rules of land law that had emerged over the preceding centuries. Primogeniture, or the right of succession of the eldest son, became characteristic of common law. It was designed only for knight-service tenures but was inappropriately extended to all land.
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The role of judges
As the legal system evolved, the role of judges became more structured and influential. With the expansion of royal justice in the late 1100s, judges played a crucial role in upholding the norms and procedures of the emerging common law. This included an emphasis on written documentation, peaceful dispute resolution, the use of local juries, and a clear hierarchy of courts.
During the reign of Henry II (1154-1189), the establishment of permanent royal courts, such as the Court of the King's Bench and the Court of Common Pleas, further solidified the role of judges. These courts expanded access to justice across different social classes, and judges became key figures in interpreting and applying the law consistently throughout the country.
In the 13th century, as the pace of change accelerated, judges in the common-law courts dealt with a significant proportion of disputes related to land occupation. This led to the development of detailed substantive rules in land law, which were eventually summarised in legal textbooks. Judges interpreted and enforced these rules, ensuring the consistent application of common law across the kingdom.
It is important to note that, during this period, common law was largely developed by judges rather than legislators. Their decisions and interpretations of the law shaped the legal system and set precedents that guided future cases. This "judge-made law" gave judges considerable discretion in deciding cases and contributed to the evolution of common law as a distinct legal tradition in English-speaking countries.
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The influence of local customs
In the early Middle Ages, local customs governed most matters, and there was a diversity of regional or local laws. This was a common feature of the legal systems across northwestern Europe, where power arrangements were predominantly local and informal.
However, with the establishment of centralised royal courts in England during the reign of Henry II (1154-1189), the influence of local customs began to change. The royal courts, based in Westminster, expanded their reach throughout the country and across all social classes. While local customs were still recognised, they were now controlled and often rejected by the royal courts as unreasonable or unproven. The common law, as declared by the royal judges, was presumed to apply everywhere unless a local custom could be proven.
This centralisation of power and the expansion of the royal justice system brought about a conservative approach to substantive law. The common law incorporated many customary norms related to crime, family, property, and inheritance, ensuring continuity with existing local practices. At the same time, it introduced innovations in terms of procedure, emphasising written documentation, peaceful dispute resolution, and the use of local juries.
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Frequently asked questions
Common law is a body of customary law based on judicial decisions and reports of decided cases. It is administered by common-law courts and stands in contrast to the legal system derived from civil law, which is widespread in continental Europe.
Common law originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up in Westminster, near London. The twelfth century saw a shift from local, informal power arrangements to formal government, and the reign of Henry II (1154-89) saw the establishment of permanent royal courts.
Common law was first declared by the judges of the Norman court, which assumed wide judicial powers. Royal judges travelled to provincial towns and applied the law of Westminster to both civil and criminal cases. The law was conservative in terms of substantive law, but innovative in terms of procedure, emphasising written documentation, peaceful dispute resolution, and the use of local juries.
