introduction to the history of common law

Rechtswissenschaftliche Fakultät

Introduction to the History of

Common Law

Elisabetta Fiocchi Malaspina


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Dillon, Laws and Jurisprudence of England and America, Boston 1894, p. 155

The expression, "the common law," is used in various senses: (a) sometimes in

distinction from statute law; (b) sometimes in distinction from equity law c) sometimes

in distinction from the Roman or civil law […] . I deal with the fact as it exists, which is

that the common law is the basis of the laws of every state and territory of the union,

with comparatively unimportant and gradually waning exceptions. And a most

fortunate circumstance it is, that, divided as our territory is into so many states, each

supreme within the limits of its power, a common and uniform general system of

jurisprudence underlies and pervades them all; and this quite aside from the

excellences of that system, concerning which I shall presently speak. My present point

is this: That the mere fact that one and the same system of jurisprudence exists in all

of the states, is of itself of vast importance, since it is a most powerful agency in

promoting commercial, social, and intellectual intercourse, and in cementing the

national unity”.

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Common Law Civil law

Not codified Law (exceptions: statutes) Codified law

role of judges: higher judicial

discretion, set precedents

role of judges: lower judicial discretion

No clear separation between public

and private law

Separation between public and private

law

No clear separation between

substantive law and procedural law

Separation between substantive law

and procedural law

Adversarial system Inquisitorial system

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Creativity of royaljudges from the 12th

century

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Civil Law

• Corpus iuris civilis (Emperor Justinian), 6th century

• 11th century: Glossators; Corpus iuris civilis

• 14-15 century: Commentators (dealing with the interpretation of the

Corpus iuris civilis)

• 16th century: Legal Humanism

• Late 16-17th century: natural law doctrines

• 18th century: European Enlightenment

• 19th century: Napoleonic Code, ABGB, BGB

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The origin of the Common Law

− Norman conquest 11th Century

− 1066: Battle of Hastings

− William the Conqueror (1028-

1087)

The entire territory of the kingdom

belonged to the king

Separation between royal and

ecclestiastical jurisdiction (king‘s

sovereignty, autonomy from the

Church, king‘s control over

ecclesiastical power)

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The origin of the Common Law

• Centralisation of administration: territorial partitioning and organisation

• Centralisation of justice

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Pyramidal Structure: the feudal land law

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King

Tenants- in-chief

Subtenants

Subjects


Centralisation of Justice

King

JudgesSubjects

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Centralisation of Justice

- Writ-system

- Royal Courts

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Royal Courts

Curia Regis: King’s Court administered all of the King’s financial legislative

and judicial affairs

• Court of Exchequer: responsible for fiscal and financial matters

• Court of Common Pleas: responsible for disputes between private

parties, which did not involve a direct interest of the King (as for example

a title to land)

• Court of King’s Bench: criminal, feudal and civil cases

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Curia Regis

Court ofExchequer

Court ofCommon

Pleas

Court ofKing’s Bench

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Writ-system

Writ (breve/formal action) = a formal written order from the Royal Chancery

that directs a form of legal action.

Royal courts could only act on the basis of the writs

Writ comparable to actio: Law could only be enforced if there was an action

for it.

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Definition «writ»

« a command of the King directed to the relevant person (official, judge),

containing a brief indication of a matter under dispute and instructing the

addressee to call the defendant into his court and to resolve the dispute in

the presence of the parties»

K. Zweigert- H. Kötz, An Introduction to Comparative Law, Cambridge, 1998,

p. 194.

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Types of writs: examples

- Writ of right (breve de recto): foundation of a proprietary action

“Henry, by the Grace of God, King of the English …to the Abbott of Thorney,

greeting. I order you to do full right without delay to Richard Fitz Adam

concerning one virgate of land in Twyell, which he claims to hold from you

by the free service of five shillings a year, and of which Roger de Bachelor

deprives him. And unless you do it, the sheriff of Northampton shall do it,

that I hear no further complaint thereof for lack of justice. Witness Ranulf de

Glanvill. At Geddington”.

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- Writ praecipe quod reddat: “command that he render.” it was a writ that

directs a defendant to return certain property

- Writ of debt: directs debt repayment. A writ which lies where the party

claims the recovery of a debt, i. e. a liquidated or certain sum of money

alleged to be due to him

- Writ of covenant: issued to a person who claims damages as a result of a

breach of promise under seal or other covenant

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Writ of trespass:

- 13th century

- principal instrument for obtaining retribution from person who had

committed a tort

- Presupposed an act of violence against a person, movable or real

possession

- Based on proof submitted to the jury for deliberation

- Granted the right of demanding compensation from the king’s judges for

the demage inflicted

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History of Common Law

Magna Carta: [1215] = recognition of prerogatives of the lords with regard

to their subjects, freemen and tenants (judicial rights)

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Magna Carta: [1215]

JOHN, by the grace of God King of England, Lord of Ireland, Duke of

Normandy and Aquitaine, and Count of Anjou, to his archbishops, bishops,

abbots, earls, barons, justices, foresters, sheriffs, stewards, servants, and to

all his officials and loyal subjects, Greeting. […]

FIRST, THAT WE HAVE GRANTED TO GOD, and by this present charter

have confirmed for us and our heirs in perpetuity, that the English Church

shall be free, and shall have its rights undiminished, and its liberties

unimpaired. That we wish this so to be observed, appears from the fact that

of our own free will, before the outbreak of the present dispute between us

and our barons, we granted and confirmed by charter the freedom of the

Church's elections - a right reckoned to be of the greatest necessity and

importance to it - and caused this to be confirmed by Pope Innocent III. This

freedom we shall observe ourselves, and desire to be observed in good faith

by our heirs in perpetuity.

TO ALL FREE MEN OF OUR KINGDOM we have also granted, for us and

our heirs for ever, all the liberties written out below, to have and to keep for

them and their heirs, of us and our heirs”.

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Magna Carta: [1215]

- Feudal law (Chapters 14-19)

(14) To obtain the general consent of the realm for the assessment of an

'aid' […] we will cause the archbishops, bishops, abbots, earls, and greater

barons to be summoned individually by letter. To those who hold lands

directly of us we will cause a general summons to be issued, through the

sheriffs and other officials, to come together on a fixed day […] and at a

fixed place. In all letters of summons, the cause of the summons will be

stated. When a summons has been issued, the business appointed for the

day shall go forward in accordance with the resolution of those present,

even if not all those who were summoned have appeared.

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Magna Carta: [1215]

- Feudal law (Chapters 14-19)

(15) In future we will allow no one to levy an 'aid' from his free men, except

to ransom his person, to make his eldest son a knight, and (once) to marry

his eldest daughter. For these purposes only a reasonable 'aid' may be

levied.

(16) No man shall be forced to perform more service for a knight's 'fee', or

other free holding of land, than is due from it.

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Magna Carta: [1215]

- Inheritance law (chapter 27)

(27) If a free man dies intestate, his movable goods are to be distributed by

his next-of-kin and friends, under the supervision of the Church. The rights

of his debtors are to be preserved”.

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Magna Carta: [1215]

- Criminal Law (Habeas Corpus)

(39) No free man shall be seized or imprisoned, or stripped of his rights or

possessions, or outlawed or exiled, or deprived of his standing in any way,

nor will we proceed with force against him, or send others to do so, except

by the lawful judgment of his equals or by the law of the land.

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- Statute of Westminster, Edward I [1275] = legal principles in civil and

criminal law. [51 chapters]

“This act is almost a code by itself; it contains fifty-one clauses, and covers

the whole ground of legislation. […] on the one hand common right is to be

done to all, as well poor as rich, without respect of persons; on the other,

elections are to be free, and no man is by force, malice or menace, to

disturb them. The spirit of the Great Charter is not less discernible:

excessive amercements, abuses of wardship, irregular demands for feudal

aids, are forbidden in the same words or by amending enactments”.

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Equity

- Court of Chancery: Chancellor received jurisdictional powers by the King

- The chancellor judged “according to conscience”

- Chancellor (mostly clergymen) was influenced by canon law, and

indirectly by Roman ius commune)

- From the 15th century it became complementary to the common law

royal courts

Development of the principles of equity jurisdiction parallel to common law

jurisdiction

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Equity and Common Law

Earl of Oxford’s Case (1615): Court of Chancery issued a common

injunction prohibiting the enforcement of a common law order.

Sir Francis:

‘in the event of any conflict between the common law and the law of equity,

equity would prevail’.

Lord Ellesmere:

‘Men’s actions are so diverse and infinite that it is impossible to make any

general law which may aptly meet with every particular and not fail in some

circumstances. The office of the Chancellor is to correct men’s consciences

for frauds, breaches of trust, wrongs and oppression of what nature so ever

they be, and to soften and mollify the extremity of law.’

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In case of conflict between the two systems = the rules of equity were to

prevail in favor of those of common law.

The overall effect of the Judicature Act that merged the two systems was the

conversion of the exclusive and separate jurisdiction of equity into a

concurrent jurisdiction. It also served to abolish the auxiliary jurisdiction,

which meant that there was no longer need to go to a separate court if one

wishes to obtain an equitable remedy. This change applied not only in the

United Kingdom but also in the Commonwealth Nations.

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Judicature Acts 1873 and 1875

• Court of Appeal

• High Court of Justice:

- Court of Chancery

- Court of Common Pleas

- Court of Exchequer

- Court of King’s bench

- Court responsible for Probate, Divorce, and Admiralty

The result of this Acts 1) the conversion of the exclusive and separate jurisdiction of equity

into a concurrent jurisdiction.

2) Abolishment of the auxiliary jurisdiction = it was not necessary to go to a separate court if

one wishes to obtain an equitable remedy.

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Supreme Court of Judicature (today: Senior Courts of England and Wales)


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Civil Law

Common

LawEquity

Common Law


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Ius Commune

Canon Law- Middle AgeWrits/Royal Courts/

Judicial Decisions based on custom and precedent

Roman Law (Corpus Iuris Civilis)

Canon LawCommon Law Code civil

BGB

Pandectist

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- Act of Supremacy: [1534] = King Henry VIII the head of the Anglican

Church. Chancellor Thomas Moore was executed for refusing to

recognize the king as the ecclesiastical leader.

The king is "the only supreme head on Earth of the Church of England“ with

"all honours, dignities, preeminences, jurisdictions, privileges, authorities,

immunities, profits, and commodities to the said dignity."

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T. Hobbes vs. J. Locke

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- Petition of Rights: [1628]: Charles I, petition from Parliament.

Predecessor of the Bill of Rights.

- Act of Habeas Corpus [1679 ]: prevention of detention of persons

without trial

- Bill of Rights: [1689] =William III. and Mary II. Guaranteed the rights and

powers of parliament and guaranteed the protection of personal

freedoms. England was declared a constitutional monarchy.

It declared “illegal” without prior authorization from Parliament, order given

by the King: to suspend the application of a law, to impose permanent taxes

and to maintain an army in time of peace.

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”And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to

their respective letters and elections, being now assembled in a full and free

representative of this nation, taking into their most serious consideration the best

means for attaining the ends aforesaid, do in the first place (as their ancestors in

like case have usually done) for the vindicating and asserting their ancient rights

and liberties declare

That the pretended power of suspending the laws or the execution of laws by regal

authority without consent of Parliament is illegal;

That the pretended power of dispensing with laws or the execution of laws by regal

authority, as it hath been assumed and exercised of late, is illegal;

That the freedom of speech and debates or proceedings in Parliament ought not to

be impeached or questioned in any court or place out of Parliament”

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“Now in pursuance of the premises the said Lords [...] do pray that it may be

declared and enacted that all and singular the rights and liberties asserted

and claimed in the said declaration are the true, ancient and indubitable

rights and liberties of the people of this kingdom, [...].”

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Rule of precedent

- «Stare decisis», «to stand by a decision» 17th century Judge Hale (1670)

It emerged gradually:

- Originally the reference to precedents by advocates in a trial was not

binding in itself, but rather as a custom

- Decisions taken by Exchequer are considered binding (16th-17th century)

- Equity is binding (17th century)

- In the 19th century: a single precedent has an absolute binding force for a

lower judge

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William Blackstone (1723-1780)

Professor at the Oxford University

Commentaries on the Laws of

England (4 volumes)

Key text both in England and the

USA

- «reasoned exposition of the law as

a whole, setting out broad

principles»

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The English Reports (1220-1873)

http://www.commonlii.org/uk/cases/EngR/1220/

The Law Reports (1865-1875; 1875-1890; 1891-today)

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http://www.commonlii.org/uk/cases/EngR/1220/


Barrister and Solicitor: Definition and History

Barrister: ‘a lawyer who is a member of one of the Inns of Court and who

has the privilege of pleading in the higher courts’

Solicitor: ‘whose services consist of advising clients, representing them

before the lower courts, and preparing cases for barristers to try in the

higher courts’

King Edward I (1272-1307)

Inns of Court: professional associations for barristers (13th century)

- The Honourable Society of Lincoln’s Inn

- The Honourable Society of Gray’s Inn

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Impact of Common Law on Continental Legal

History

- On the modern constitutional states

- On the separation of powers

- On criminal law: France at the end of the eighteenth century introduced

the English criminal jury system

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introduction to the history of common law

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