History of Law: English Common Law


Figure 1.--The basic law of Britain (except Scotland) is English common law, an unwritten law based on custom and usage. Emerging from the European Medieval era was English common law, England's great gift to America and its other colonies. English common law was a necessary comcomitant of capitalism which allowed the West to create the modern world. France had nothing like English common law as a result of royal absolutism. As a result, of the English colonial experiebce, common law is also the foundation of American law and law in the other former colonies, includng England. This portrait is by Irish painter George William Joy and the title was, "The judge and the child, an innocent witness of a crime."

The basic law of Britain (except Scotland) is English common law, an unwritten law based on custom and usage, Emerging from the European Medieval era was English common law, England's great gift to America and its other colonies. English common law was a necessary concomitant of capitalism which allowed the West to create the modern world. France had nothing like English common law as a result of royal absolutism. Modern England is an amalgam of many different peoples and English common law shows an imprint of many of these people. The exception was the Celts and Romans. The Romans suppressed Celtic culture and the Anglo-Saxon s suppressed Roman culture, including Roman law. Thus English common law is less influenced by Roman law than is the case of continental Europe. Thus English common law has a Germanic rather than a Roman foundation. Its origins are the legal concepts of the Anglo-Saxon invasions (5th century AD). King Alfred the Great (849-99 AD) reportedly translated the limited legal texts of the day into English. To this Anglo-Saxon based was grafted Danish (Viking) legal traditions, most importantly the principle of trial by jury, William the Conqueror's victory at Hastings (1066) ended Anglo-Saxon rule. It did not, however, end Anglo-Saxon law. William combined Anglo-Saxon law with Norman law. William had ulterior motives. If he had completely suppressed Anglo-Saxon institutions, his rule would have been dependent on the Norman barons. By wining over Anglo-Saxon England, the English crown could draw on a much wider base of support. The combination of Anglo-Saxon and Norman law emerged as English common law. It developed as custom and precedent rather than by written code. This common law came to be a real force (14th century). Courts and lawyers began to defer to precedents in legal decisions and commentaries. Another strain of English law is the law of equity (chancery). These were law issued by the monarchy to order or prohibit specific acts. The first major compendium of English common law was Sir William Blackstone's Commentaries on the Laws of England (1769).

Definition

The basic law of Britain (except Scotland) is English common law, an unwritten law based on custom and usage, Emerging from the European Medieval era was English common law, England's great gift to America and its other colonies. English common law was a necessary concomitant of capitalism which allowed the West to create the modern world. France had nothing like English common law as a result of royal absolutism. Common Law is so named as it was the law common to all England, as opposed to the law enforced by the feudal barons in their fiefdoms or provincial precedents as decided by the local and manorial courts. Common Law is also understood to be “law by precedent”, distinguished from statutory law, i.e., parliamentary legislation to which Common Law is complementary. American jurist Oliver Wendel Holmes Jr. provides a concise explanation of the common law, "The life of the law has not been logic: It has been experience. The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics." [Holmes, p. 1.]

Development

Modern England is an amalgam of many different peoples and English common law shows an imprint of these prole. England's greatest monarchs played key roles, Alfred the Great, William I, and Henry II. Ironical some of the most important steps in the development of the common law was made during some of the worst kings, such as John. The reaction to their attempts at royal absolutism resulted in precedents such as the Magna Cara. And weak kings also allowed important precedents and the growth of parliamentary authority.

Roman Britain

The exception was the Celts and Romans. The Romans suppressed Celtic culture and the Anglo-Saxon s suppressed Roman culture, including Roman law. Thus English common law is less influenced by Roman law than is the case of continental Europe.

Anglo-Saxons

Thus English common law has a Germanic rather than a Roman foundation. Its origins are the legal concepts of the Anglo-Saxon invasions (5th century AD). King Alfred the Great (849-99 AD) reportedly translated the limited legal texts of the day into English.

Danes/Vikings

To this Anglo-Saxon based was grafted Danish (Viking) legal traditions, most importantly the principle of trial by jury, This was a crucial development. The jury allowed the for lay participation in the justice system. It also offered a substitute for the wholly inadequate methods of proof of the traditional Germanic law—ordeal, trial by battle, and wager of law.

Normans

Duke William's victory at Hastings (1066) ended Anglo-Saxon rule. William I is of course known as the Conqueror. He was in fact an extraordinarily effective administrator and ruler who made decisions that profoundly affected the future of England. William's victory did not end Anglo-Saxon law. William decided to combined Anglo-Saxon institutions and law with those of Normandy. illiam had ulterior motives. If he had completely suppressed Anglo-Saxon institutions, his rule would have been dependent on the barons he created. By wining over Anglo-Saxon England, the English crown could draw on a much wider base of support. William continued the jury system already developing in England and establishment a centralized royal court system. Under William the royal courts were very limited. Justice was primarily dispensed in local and feudal manorial courts, but subsequent monarchs would expand the royal courts. And in the centralized royal courts a definite legal tradition could develop--the common law. And in these courts justice could be administered by trained professional judges and their attendant clerks. Until the creation of the royal courts, justice was largely determined by men without legal training--popular assemblies or groups of wise men.

Magna Carta (1215)

Magna Carta was an actual document, but it promoted the growth and direction of English Common Law because it placed limits on royal authority. It was the Barons and high churchmen demanding the limits to protect themselves. But over time through the development of English Common Law, those rights were extended to the humblest of the monarchy's subjects. Magna Carta meant the Great Charter. King John is a rare English monarch with no Roman numeral after his name. Because of his abusive rule violating the developing Common Law. There as a result been no John II. The Barons and high churchmen forced the Ling to sign Magna Carta at Runnymede, near Windsor (1215). The document was first drafted by the Archbishop of Canterbury. The purpose was to prevent a civil war between powerful rebel barons and an unpopular king pursuing royal absolutism. Magna Cara consisted of a long list of demands, but basically was Jon's pledged to protect the rights of the church and barons. The Barons were promised protection from illegal imprisonment, access to swift justice, and limitations on feudal payments to the Crown. It was to be implemented by a council of 25 barons. In reality, neither side honored their commitments. And Pope Innocent III annulled the Charter resulting in the First Barons' War. King John died soon after signing Magna Carta . The regents of his young son, Henry III, reissued the document (1216), but without its more radical content. It proved to be a failed effort to gain support. At the end of the Baron's War (1217), Magna Carta became part of peace treaty signed at Lambeth. It was here that the document began to be called Magna Carta. This was because the more limited Charter of the Forest was issued at the same time. The governing force behind the Magna Carta and the growth of democracy was taxes and money. Henry obtained new taxes, but in exchange Magna Carta again (1225). His son, Edward I, was forced to do the same (1297). He had to confirm it as part of English statute law.

Emergence

The combination of Anglo-Saxon and Norman law emerged as English common law. It developed as custom and precedent rather than by written code. The crafting of English Common Law was begun in the reign of Henry II, surely the great achievement of this forceful monarch. Henry had foreign legal learning and instituted fundamental legal reform in England. This was done in part to undermine the authority of the feudal barons and the clergy. Henry's royal judges and those of his successors nurtured the Common Law which developed from the procedure of the King's central courts—the Court of King's Bench, the Exchequer, and the Court of Common Pleas. This common law came to be a real force (14th century). Courts and lawyers began to defer to precedents in legal decisions and commentaries.

Law of Equity

Another strain of English law is the law of equity (chancery). These were law issued by the monarchy to order or prohibit specific acts.

Compendium

The first major compendium of English common law was Sir William Blackstone's Commentaries on the Laws of England (1769).

Sources

Caenegem, R. C. van. The Birth of the English Common Law (Cambridge: University Press, 1973).

Churchill, Sir Winston S. "The Birth of Britain," Vol. I (Barnes & Nobel: New York, 2005), 458p. The original edition was published in 1956.

Holmes, Oliver Wendell Jr. The Common Law (1881). Holmes before his appointment to the Supreme Court delivered a series of lectures at the Lowell Institute in Boston (1880). They were subsequently published here. His lectures and survey of English common law had a profound impact on Americam jurisprudence.

Maitland, Frederic William. English Law and the Renaissance (Cambridge: University Press, 1901).

Potter, Harold. An Historical Introduction to English Law and Its Institutions (London: Sweet & Maxwell, 1932).








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Created: 7:30 AM 1/11/2009
Spell checked: 12:27 PM 4/18/2018
Last updated: 12:27 PM 4/18/2018