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Common Law History• The emergence of the English law between the 11th and 14th
centuries
• The significance of the Norman conquest (1066)
The Battle of Hastings in 1066 made the gradual domination of nearly the whole
of British Isles in the following years possible. The subsequent effect of the
Norman kings and their officials on the administration of law was so profound
that we can confidently ignore any earlier influences. One of the achievements
was the organized feudal systems with the King as the supreme feudal overlord.
All of the land was of the king and the followers could hold the land for a fee.
• The emergence and role of royal courts
The taxes paid by feudal inferiors were checked by the Curia Regis: a council
consisting of the Kind and his advisers. If the taxes were regularly to come in,
there must be peace in the land. Thus the Kind took exclusive jurisdiction over all
serious crimes; the fines and confiscations proved a significant new source of
income. In this way, there developed a royal justice. There developed gradually
out of the Curia Regis 3 permanent central courts, fixed at Westminster: the Court
of Exchequer, the Court of Common Pleas and the Court of King’s Bench. At the
same time, local rules of law lost their importance and they gradually faded into
the law applied by the royal judges, the ‘Common Law’.
• The writ system and its limitations
Litigation in the middle ages was founded on ‘writs’. A ‘writ’ meant a command of
the King directed to the relevant official, judge, or magistrate, 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 precence of the parties.
All the writs together were collected in the ‘Registers of Writs’. The problem
about writs was that it was important to make the correct choice of which writ
you applied, since the complaint would be dismissed if the wrong writ were
chosen. That was difficult because of the fact that each set of facts had its own
writ, and not all cases were exactly the same as the set of facts of that certain
writ. The writs were also limited because of the fact that the Chancellor was
never free to invent new writs because he thought that it would help the proper
and orderly development of law. This indicates the problems and limitations of
the writs: on the one hand you don’t know if a writ is a correct one and on the
other hand the Chancellor isn’t able to make new ones to fit that certain case.
• The legal professor
There were lawyers needed because of the difficulties of the writs. All writs even
had their own rules of procedure and each writ was very expensive to get/buy.
The lawyers avoided generalisations and definitions. Their method was intensely
casuistic. They proceeded from case to case and were anxious to establish a
good working set of rules or a logical system because of the casuistic approach of
the writs.
The nature of English law were fundamentally affected by the fact that a class of
jurists that arose, organized themselves in a kind of guild and so exercised very
great political influence. After that a distinction was drawn between attorneys
and pleaders, who organized themselves in several independent guilds,
controlled by benchers (senior practisers). There was a monopoly of the Inns of
Court in England until the 19th century. Legal education was primarily practical
and empirical, learnt by taking part in court proceedings and appearing in moot
, courts. They went from situation to situation and never tried to rise from the
particular case to the general principles from which the decision in the particular
case could be deduced. This is why England never had a comprehensive
reception of Roman Law, where the understanding of decisions and law was their
primary aim in law. The English only used the concepts and methods of Roman
law so far as was necessary to put some articulation and order into the
indigenous English legal material.
• The Early Modern Period (15th-18th centuries)
• Equity and the chancery
At the end of the 14th century the legal system appeared to be crude and
formalistic and everyone that lost a lawsuit, could petition before the King if they
had a negative influence in their case because of tricks of procedure, political
influence or if they didn’t apply the right writ. These decisions, by the Chancellor
(who made the writs), developed into a complex of special rules ofl aw which are
still referred to in England as ‘equity’. Defendants could be called before court by
a special writ, carrying the threat of a steep penalty, named a ‘writ of subpoena’.
Throughout the 15th century the Chancellor decided more or less as he thought
fit; decisions were coloured by the individual preferences. But when Thomas More
was appointed, equity jurisdiction began to follow the model of the Common Law
and developed rules and doctrines to which the Chancellor had recourse when
similar fact-situations arose. Before long, the Chancellor felt almost as bound by
precedent as the judges of the Common Law courts. The activities of the
Chancellor became more and more judicial and the office became the separate
Court of Chancery, helped from 1730 onwards by the Master of the Rolls. In the
18th century, equity was as much fixed by decisions and as much formed into
technical regal rules as the rules of the Common Law. In practise, the most
important group of rules developed by equity are the rules of ‘trusts’.
Equity also developed a number of remedies which greatly supplemented the
crude system of pleas in the Common Law: in the old Common Law there was
only ad hoc action, so the harm had to be done on beforehand. The Chancellor
thought that this was unacceptable and could also grant, under certain
circumstances, an injunction to prevent a future legal wrong which would be
unconscionable. An injunction protected you against any further trial, judgement
or execution if judgement would be given. The Chancellor operated inductively:
dealing with each concrete problem as it came before him.
The practice of the Chancellor led to a violent confrontation between Lord
Chancellor Ellesmere and Chief Justice Coke. Coke was of the view that the
Chancellor had no right to sit in judgement over the Common Law courts by
brusquely forbidding the continuation of active lawsuits or forbidding the
execution of judgements lawfully obtained (this was the 1 st and only open
confrontation between equity and Common Law, decided in favour of the
Chancellor).
A ‘specific performance’ is another legal remedy developed in equity
jurisprudence. If it was unfair to restrict the innocent party to a claim for
damages, the Chancellor would allow under conditions, a claim for performance
of the contract in specie. The rules of Equity, however, did not openly contradict
those of the Common Law and did not seek to replace them. Instead, equity
added marginalia, glosses and supplements to the Common Law. It is, thus,
possible to imagine English law without equity, but it is impossible to conceive of
English law without the Common law in the narrow sense.
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