The emergence of England’s common-law tradition during the twelfth and thirteenth centuries formed the foundation of the legal systems of Britain and most of its colonies.
William the Conqueror
The term “common law” refers to that law that originated in the English royal court and gradually spread until it became common to much of the realm, dealing with all persons equally as subjects of the king regardless of class. Built up gradually by the king and his judges, the common law took effect in no single year. By about 1200, however, the characteristic features of the common law were well established. William the Conqueror, in the years after the conquest of England, laid the foundations for the later emergence of the common law. A strong administrator, William introduced feudalism,
Although during the reign of William’s son, Henry I
The most decisive period in the formation of the common law occurred during the reign of Henry II. Henry II
The common law was called “the law of the land” in part because it constituted a body of rules about pieces of land; it was a body of real property law, a law of real estate. Such a development was natural in a community such as that of twelfth century England, where the most important form of wealth was land. Naturally, one of the most important tasks of the legal system was to devise a body of rules to settle disputes concerning its ownership or possession.
Perhaps the most famous instrument of the common law was the writ. The number of writs grew from about thirty-nine in the late twelfth century to more than four hundred by the end of the thirteenth century, a clear indication of the growth of the common law. Writs were written orders in the king’s name that required action by a defendant or court. Property rights were at the heart of much of the common law, and Henry II developed at least four writs to address the problem of seizure of property. Perhaps the most significant of these was the assize of novel disseisin, designed to quickly restore property to a property’s owner. A dispossessed property owner would secure a writ, addressed to the sheriff, instructing him to assemble a jury of twelve men knowledgeable of the facts of the case. It was the task of this jury to decide before a judge whether or not the dispossession had occurred within a particular period of time. If it had, the sheriff was required to return the land to the original property owner. Since in the twelfth and thirteenth centuries the writs designed to settle the question of possession (possessory writs) were the ones most widely used, they were the ones characteristic of the common law in its formative stages. One such writ, the Assize of Mort d’Ancestor, was used to secure an inheritance of real estate, for example.
One characteristic of common law that emerged from this was its emphasis on the use of proper procedures; it did not begin with assertion of a right but designated a procedure to be used by the aggrieved party. It has been said that in the common law, “substantive law, or right, is secreted within the interstices of procedure.” Moreover, it is apparent that the common law, as exemplified by the assize of novel disseisin, demanded considerable citizen participation. The jury of inquiry was the heart of the whole procedure, the jury here serving the same function as witnesses in later courts by providing information.
Henry’s order that no one be disturbed in the possession of his land without a king’s writ gave the king’s law wide jurisdiction over real property and caused royal justices to formulate more and more rules about the ownership of land. In addition, his itinerant justices extended the king’s law under the guise of keeping the king’s peace. The application of the “grand jury,” men familiar enough with events in the vills (villages) and hundreds of the shire (county) to report crimes, brought more and more cases under the competence of the royal justices. The establishment of new courts followed.
The constant extension of the number of writs until the last quarter of the thirteenth century virtually ended the application of the old feudal baronial law. By the time of Edward I
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Baker, J. H. An Introduction to English Legal History. 3d ed. London: Butterworths, 1990. Not only provides a standard history of English law but also includes documents in Latin with accompanying English translations. -
Hines, W. D. English Legal History: A Bibliography and Guide to the Literature. New York: Garland, 1990. A good starting place for research into English legal history, this volume provides an introduction for each facet of the law. -
Hogue, Arthur R. Origins of the Common Law. Bloomington: Indiana University Press, 1966. Emphasizes the interrelationships among the monarchy, society, and the law, concluding with a chapter examining the legacy of medieval common law. -
Pollock, Sir Frederick, and Frederic William Maitland. The History of English Law Before the Time of Edward I. 2d ed. 2 vols. New York: Cambridge University Press, 1968. A classic work that traces the history of English law through the maturation of the common law during the thirteenth century. -
Van Caenegem, R. C. The Birth of the English Common Law. 2d ed. New York: Cambridge University Press, 1988. Outlines the development of the common law beginning with William the Conqueror. Discussion of royal writs and writ procedure illuminates a difficult topic. -
Walker, James M. The Theory of Common Law. Boston: Little, Brown, 1852. Reprint. Union, N.J.: Lawbook Exchange, 1998. A classic history of common law in England, including Roman influences.