Gavin Howe
The English common law, or the common law, refers to the legal system that originated in the English royal court after the Norman Conquest in 1066. The term common law is derived from the fact that it was common to all the king's courts across England. The common law was built upon case law and gradually spread until it became common across the realm, treating all persons equally as subjects of the king, regardless of class. The evolution of common law saw significant contributions from various monarchs, especially Henry II, who expanded the use of travelling judges and introduced legal procedures such as juries and writs. However, it was Henry of Bratton (Henricus de Brattona or Bractona), an English judge, who is credited with systematizing and codifying the common law of England with his treatise, which appeared during the reign of King Henry III.
| Characteristics | Values |
|---|---|
| Name | Henry of Bratton (Henricus de Brattona or Bractona) |
| Occupation | English judge of the court known as coram rege (later King's bench) |
| Time Period | 13th century (1247-1257) |
| Treatise | On the Laws and Customs of England |
| Influence | Roman law, Canon law, Civil law |
| Impact | Systematized and codified the common law of England |
| Other Contributors | William the Conqueror, Edward I, Henry II |
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What You'll Learn
The Norman Conquest of 1066
Prior to the Norman Conquest, England's legal landscape was characterised by a variety of courts operating at different levels. Local folk courts of the shires and hundreds played a significant role in administering justice, alongside individual courts held by urban boroughs, merchant fairs, and large landholders. The Anglo-Saxon legal traditions included the use of juries, ordeals, the penalty of outlawry, and writs. The Catholic Church also had its own court system for matters of canon law, encompassing what we now know as family law.
Following the Norman Conquest, William the Conqueror laid the foundations for the emergence of the common law system. This system, known as the "law of the land," aimed to unify the legal practices across the country, making it accessible and applicable to all subjects of the king, regardless of social class. William introduced feudalism, grafting this system of government onto the existing Anglo-Saxon customs. He asserted and enforced royal rights, which formed the basis for the development of common law.
The evolution of common law continued under subsequent monarchs, particularly Henry II, who made significant contributions. Henry II expanded the use of travelling judges and introduced legal procedures such as juries and writs. He issued the Assizes of Clarendon, providing instructions to his justices on handling criminal cases. Henry II's reforms ensured that royal courts could prosecute criminals, and he played a pivotal role in shaping the common law system.
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William the Conqueror's systemisation
William the Conqueror, the first Norman King of England, created 10 laws for his English subjects to follow after the Norman Conquest of 1066 and the Battle of Hastings. These laws, known as the "Statutes of William the Conqueror," laid the foundation for the English common law system.
The first law emphasised the importance of religious unity, loyalty to the king, and peace between the English and Normans. This law set the tone for the rest, which focused on maintaining order and establishing clear procedures for various situations. For example, the second and twelfth laws required every freeman to swear an oath of loyalty to King William and protect his lands. The third and twelfth laws ensured peace for the Normans who came with William, with consequences for anyone who violated their peace.
The fourth and twelfth laws mandated that every Frenchman pay specific taxes or duties, such as the "onhlote" and "anscote." The fifth law placed restrictions on the sale of cattle, requiring three credible witnesses to be present in a city. The sixth law addressed criminal charges, granting Englishmen the right to defend themselves against accusations made by Normans.
The eighth and thirteenth laws defined the status of a "freeman" and the importance of having a surety, or a guarantor, who would be responsible for handing the freeman over to justice if they committed any offence. The ninth law imposed a fine for selling a man into slavery outside the country, with the fine payable directly to William. The tenth law prohibited hanging or killing as punishment for any crime, instead opting for blinding and castration.
William the Conqueror's laws had a significant impact on the development of English common law. They contributed to the establishment of a unified legal system across England, gradually replacing the local folk courts and manorial courts that existed before the Norman Conquest. These laws set precedents and provided a framework for future legal doctrines, with some of them, such as the requirement of witnesses for certain transactions, still holding relevance today.
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Henry II's contributions
One of Henry II's most notable contributions was the establishment of permanent professional courts at Westminster and in the counties. These courts, which included the Exchequer court as a precursor to the later Common Bench at Westminster, brought about a fundamental shift in the relationship between the King, the Church, the State, and society. Henry's itinerant justices, who travelled throughout his realm, played a crucial role in this transformation by bringing free men in local courts into regular and direct contact with central government. This marked a departure from the past, where dealings were primarily with local officials.
Henry's legal reforms had a profound influence on his contemporaries and successors. For example, Philip II's creation of itinerant bailli was inspired by Henry's model. Additionally, Henry's interventions in Brittany, Wales, Ireland, and Scotland had long-term repercussions on the development of their societies, histories, and governmental systems. The impact of his reforms extended beyond his own kingdom, as English common law became the law of the colonies settled under the Crown of England, influencing legal systems worldwide.
The historical interpretation of Henry II's reign and his contributions to the common law has evolved over time. While he faced criticism from his contemporaries and later scholars for certain aspects of his rule and personal life, the Victorian-era scholars recognized his role in the evolution of key English institutions, including the development of the law and the exchequer. Henry's reign was also seen as pivotal to the creation of a unified Britain and a genuinely English monarchy, free from the influence of the French king.
In conclusion, Henry II's legal changes laid the foundation for English Common Law and had a lasting impact on the legal systems of multiple countries. His establishment of permanent courts and the work of his itinerant justices brought about a closer connection between the people and the central government, reshaping the power dynamics between the monarchy, the Church, and society. Henry's contributions continue to shape legal traditions and principles that form the basis of common law jurisdictions today.
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Roman law's influence
English common law, which originated in the practices of the courts of English kings following the Norman Conquest in 1066, was influenced by Roman law. This influence was evident in the Latinate legal glossary of English common law.
Roman law, or the legal system of ancient Rome, has influenced 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 has influenced derivative systems elsewhere. The practical application of Roman law ended with the creation of national codifications, such as the French civil code in 1804. However, the influence of Roman law extended beyond the Roman Empire and persisted long after its fall, even in countries that were never subject to Roman rule.
In the 16th century, Roman law was rediscovered and came to dominate the legal practice of many European countries, including Scotland. This legal system, known as Ius Commune, was a mix of Roman law, canon law, and Germanic custom, particularly feudal law. While England did not adopt the Ius Commune, elements of Romano-canon law were present in ecclesiastical courts, and Roman law concepts influenced English common law, particularly in the 19th century.
English common law, or judge-made law, was the primary source of law for several hundred years before the creation of statutory law. The English Court of Common Pleas, established after the Magna Carta in 1215, tried lawsuits between commoners that did not involve the monarch. The yearly compilations of court cases, known as Year Books, are a principal source for understanding the development of legal doctrines and concepts during this period.
Roman law concepts that influenced English common law include the divisions of actions into in rem and in personam. These concepts laid the groundwork for the return of Roman law structural concepts in the 18th and 19th centuries, as seen in Blackstone's Commentaries on the Laws of England. Additionally, the universality of Roman law, which applied to both citizens and non-citizens, contributed to the idea of law as a concept common to all peoples, dictated by nature, which the Romans adopted from Greek philosophy.
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Development of case law
The development of case law, or common law, in England has a long and complex history, dating back to the centuries following the Norman Conquest in 1066. This legal system, common to all the king's courts across England, gradually replaced the local folk courts and manorial courts that had previously existed. The English Court of Common Pleas was established after the Magna Carta in 1215 to hear lawsuits between commoners that did not involve the monarch.
The early development of case law in the 13th century can be traced back to Bracton's "On the Laws and Customs of England", which laid the groundwork for the return of Roman law structural concepts in the 18th and 19th centuries. The yearly compilations of court cases, known as Year Books, became the principal source of knowledge for the evolving legal doctrines, concepts, and methods of the time. These Year Books are considered the law reports of medieval England.
In the centuries that followed, English common law continued to evolve, with judge-made laws and precedents created in the proceedings of Royal justices in the Circuit courts. This period also saw the codification of English common law, with the Pleading in English Act of 1362 as an example. The impact of Roman law decreased sharply after the age of Bracton, but the divisions of actions into in rem and in personam left a lasting impact.
The development of case law in England was also influenced by the spread of the English legal system to Wales, Ireland, and overseas colonies, which continued under the British Empire. Many former colonies, including the United States, Canada, Australia, and India, retain the common law system today. The common law system is characterised by its emphasis on judicial precedent and the style of reasoning inherited from the English legal system.
In modern times, case law in England continues to evolve through the interpretation of legislation by courts, such as the UK Supreme Court, to ensure compatibility with the European Convention on Human Rights (ECHR). The Human Rights Act of 1998 allowed individuals to challenge violations of their rights under the ECHR within UK courts, rather than having to go directly to the European Court of Human Rights in Strasbourg. While the UK Supreme Court does not have direct oversight over lower courts, it can issue a "declaration of incompatibility" if legislation is deemed incompatible with the ECHR.
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Frequently asked questions
English common law was systematized by Henry of Bratton (Henricus de Brattona or Bractona c. 1210-1268), an English judge.
The Norman Conquest of 1066 reintroduced continental ideas and Roman legal concepts. It established a unified legal system, gradually replacing local folk courts and manorial courts.
Common law is a legal system that focuses on case precedents rather than written statutes and is derived from the practices of the courts of English kings. Civil law, on the other hand, is based on written statutes and codes.
Henry II expanded the use of traveling judges and introduced legal procedures such as juries, systematized the grand jury, and developed procedures for returning land that had been wrongfully seized.
The term "common law" refers to the law that was common to all the king's courts across England. It originated in the practices of the English royal courts following the Norman Conquest.
