Brief
History of Common Law
(Part I: Early History)
The Importance of Legal History
Law cannot be fully understood without the
knowledge of history. For instance, in Britain, the House of Lords
is part of the legislature. It is also the highest court of appeal.
Why should this be?
No one drafting a constitution today would choose
to give the judicial power to the legislative. According to the
doctrine of check and balance in the three branches of government,
lawmakers should represent the people as a whole. It should not,
like the House of Lords in U.K., consist of aristocrats and people
appointed for life by the government. Judges should not be part to
the legislature. If they are, they are not truly independent.
The House of Lords has this strange combination
of powers because the modern House of Lords is the heir of the
mediaeval noblemen. In the Fourteenth century these noblemen or
peers obtained the right to be summoned to Parliament and to correct
errors made by the ordinary courts of law. Their successors have
kept these powers in a changed form, though they no longer reflect
the balance of forces in Britain.
The historical explanation of the powers of the
House of Lords helps to show how law evolves, or fails to evolve. A
law for which there was originally a good reason can survive though
the reason has vanished. Of course if laws are totally unsuited to
new conditions they go under.
In western countries the laws that treated women
as inferior to men in voting, holding public office, making family
decisions, owning property and earning money have over the last
century almost vanished. In China, the law concerning the private
right in property has been modified again and again according to
different ideologies. The knowledge of history can help us explain
the illogic combination of the ownership in house and lease in land
on which the house was built.
You are going to read a lot of common law cases,
old or new, famous or ordinary. They are different from ours in
terms of language and legal reasoning. Why are they so different
and, to what extent, we can learn from them? Those fundamental
questions have to be answered from the historic perspective.
The Roots of English law
Common law originated in English,
an island not very far from the European continent. For a long time,
one of the Celtic people inhabited the ancient Britain. Then, Roman
army came and finally conquered England in A.D. 43. For the next
three and half centuries Britain was under Roman rule. But Romans
did little to spread their culture there. Around two-thirds of the
people lived outside of the towns controlled by Roman generals,
spoke no Latin and worshiped Celtic gods.
With the collapse of the great
Roman Empire, its legions were withdrawn from Britain. Then came the
greatest series of Anglo-Saxon invasions:
Jutes and Angles
from what is now Denmark and
Saxons
from northern Germany. The local Celtic population fled to the
mountains of Scotland and Wales, so that Anglo-Saxon Stock now
became the dominant ethnic Strain in England. But England was
divided among Anglo-Saxon kings, and wars had continued among them
for the next five hundred years.
Then, during the ninth century,
Norsemen and Danes (Vikings) had raided England, struck in Scotland,
and overran Ireland. The King of Wessex (a powerful Kingdom at that
time) rallied England against the Viking attacks. In the next two
centuries Vikings would continue to make their way to England, and
there were more wars. The Vikings invasions have left definite
traces in law. The very word ‘law’ is not English but Norse. The
Danes independently developed a sort of grand jury and they had a
tradition to form clubs and trade unions.
The king of Wessex remained the
king of England, and it prospered for a while. But the Anglo-Saxons
was poorly organized, their political backwardness contributing to
military weakness. In January 1066, King Edward died. He was
succeeded by the Earl of Wessex, Harold. This bothered a duke named
William across the English Channel in
Normandy.
William was the cousin of the King Edward, and Edward had promised
to make him the next king. William believed that he had a right to
rule in England. These Norman aristocrats were descendants of
Vikings who had settled in France, and they would try to solve their
problem in the traditional way: conquest.
In October 1066, with 5000 Norman
knights, William landed in England, near Hastings, and there his
army met Harold's Anglo-Saxon army. Harold was killed in battle,
leaving William as the most powerful force in England. Scotland,
Ireland and North Wales to remain independent of English kings for
generations to come.
The year 1066 is one of the
watershed dates in legal history. The conquest of England by William
set in motion the train of events, which eventually resulted in the
creation and development of the distinctive legal tradition that we
now refer to as the common law.
In fact, the change that started
in 1066 was neither sudden nor dramatic. William found awaiting him
a fairly sophisticated and long-standing system of dispute
resolution. Indeed, one of his first acts after killing King Harold
at the Battle of Hastings was to declare that the old system of
Anglo-Saxon laws would continue in force.
The problem with the pre-Conquest
legal system in England was not its lack of sophistication (indeed,
some of the old Anglo-Saxon customary rules were very complicated),
but rather its lack of commonality.
Anglo-Saxon law was based on local custom. And because England had
been subject to so many invasions in the six centuries since the
departure of the Romans, there were in fact several different sets
of customs in force in different parts of the kingdom. So even
though a unified political entity called England had existed since
the ninth century, there was no single set of rules which governed
society as a whole.
Feudalism
The greatest result of the Norman
Conquest was the introduction of precise and orderly methods into
the government and law of England. By this it is meant that while
they did not directly impose a new body of substantive law in
England, they did build on the pre-existing social structure to
establish an administrative framework which allowed a new legal
system to develop and flourish.
The system of economic and social
organization introduced by the Normans is known as 'feudalism'.
Stated in simple terms, feudalism was a system of land ownership
based upon a formal social hierarchy.
Feudalism appeared in Europe when the Kings took over Roman imperial
authority but lacked the funds to maintain a functional government
and strong army. So they found that their only alternative was to
grant land as reward for service. At the top of the hierarchy sat
the king, who was said to have dominion over all lands in the
kingdom. Under the king sat a first level of land-owning nobles who
were known as tenants-in-chief, meaning that they held title to
their lands by virtue of a direct grant from the Crown. Under the
tenants-in-chief were a series of descending levels of sub-tenants,
each of whom held land by virtue of a grant from the next higher
level in the chain, culminating in the lowest order of land-holding
freemen.
The underlying premise of feudal
tenancy was the mutual promise. In addition to the loyalty that all
subjects owed the king, feudal loyalty was owed one level upwards:
each landholder swore an oath of allegiance to the lord - the
immediate superior in the chain. Attached to the bond of loyalty was
an obligation to provide one's lord with a share of one's crops and,
if necessary, to engage in military service on the lord's behalf. In
return, lords promised to protect and assist their tenants in time
of need.
The reason that the Norman kings
employed the feudal system in their governance of England was a
simple one: at no time did they have enough power to exercise
personal control over the entire country. Accordingly, shortly after
asserting his right to the throne, William effectively leased out
the greater part of his new realm. Most of the land was granted to
Norman nobles who had assisted William in the Conquest, but some was
granted back to the Anglo-Saxon nobles in return for promise of
loyalty to the new regime. The feudal system of land occupation or
possession which came into being after 1066 formed the basis of
English property law until 1921, as it still does in some parts of
common law countries today. Just as importantly, however, feudalism
laid the foundation for a stable system of government in which the
institutions of civil authority could develop and replace
dictatorial military rule.
The birth of the
common law: the extension of the king's jurisdiction
As has been mentioned, William did
not formally abolish the old local Anglo-Saxon courts. Indeed, the
establishment of feudal system in some ways gave the local courts a
new life. Nevertheless, the political domination through feudalism
asserted by the new kings contained within it the seeds of the
ultimate decline of local customary law.
Although they varied considerably
in their ability, the Norman kings took their job very seriously.
One of the prime responsibilities of a monarch, of course, is to
hear complaints from subjects. Accordingly, as William and his
successors traveled around the kingdom, they would 'hold court', and
receive petitions from the people.
Often, the petitions complained of
acts of injustice committed on them by local officials, or of
general unfairness in local administration. Indeed, one of the
earliest books about the common law described that the litigation in
local courts as the ‘utterly uncertain dice of pleas’. In a reaction
to this - and in part because they had no real source of local
knowledge - the premise upon which the kings and their delegates
dealt with these petitions was that ‘like cases should be treated
alike’. This was the foundation of the system of stare
decisis. Finding a precedent is just another way of saying
'finding out how other similar cases have been treated'.
In this attempt to avoid the
arbitrariness lay the reason for the common law's success. Since the
king was more likely to be free of parochialism
and local prejudice when he resolved disputes than the local lord or
his deputies, people began to seek the king's justice in preference
to that of the local lords.
There was another attraction to
the new system: unlike the rulings of a local court, the king's
decrees legal force throughout England. To state it in modern terms,
for litigants shopping for the most suitable forum, the possibility
of obtaining a judgment which would be recognised, and hence could
be enforced, everywhere in England had an understandable appeal.
Over time, a body of royal rulings
dealing with petitions for justice came to be built up. This new
body of rules began simply enough as the kings' desire to establish
and maintain peace and order (and thereby to secure their own
position) throughout the newly conquered territories. But this
exercise contained the seeds from which grew the system of private
dispute resolution that we now know as the common law.
The king's rules applied
everywhere throughout the land. They applied commonly to all
Englishmen, regardless of the custom in their own county.
Accordingly, the body of rules stemming from these royal judgments
came gradually to be known as the common law.
The Start of legal
structures
From the earliest times after the
Conquest, the kings had gathered around them a body of trusted
advisers. This body was known as the Curia Regis - the king's
court. But 'court' was used in its older sense of referring to the
king's personal retinue,
rather than in the modern judicial sense. The King’s Court
functioned as a general advisory body, providing the king with
counsel and advice before he made decisions. Gradually, though -
probably because the king wished to be relieved of some of the more
tedious aspects of ruling - some decisions began to be left to
members of the Court itself.
In addition to the King’s Court,
the kings began to appoint officials called 'justiciars'. The
justiciars acted as a royal representative in the king's absence
from England, something which was common in the decades immediately
following the Conquest. The English kings were still the Dukes of
Normandy with extensive land holdings in France. Indeed, it was not
until the era of King John, which began in 1199, that a
post-Conquest English king spent more time in England than he did
abroad.
The appointment of these royal
delegates - the Curia Regis and the justiciars - marked an
important step in the transformation of the common law from a
personal instrument of the king to a real institution of government.
In the early days, if one wanted to seek the king's intercession in
a dispute, he had to approach the king himself. This meant going to
where the king happened to be in residence - which was not always an
easy thing. But with delegates who could in the king's absence act
on his behalf, and importantly, render decisions in his name, the
lot of the seeker of royal justice was made much easier.
Even more significant was the
appointment, which began in the twelfth century, of 'Justices in
Eyre' (itinerant justices), a group of travelling justices who,
although not necessarily members of the King’s Court, carried the
king's commission to hear and resolve disputes in all parts of the
country. For the purposes of these travelers’’ commissions, England
was divided into a series of regions, or 'circuits', which formed a
basis of legal administration in England until the 1970s.
At the same time, the King’s Court
continued to have a significant involvement in judicial business,
for large numbers of people continued to approach the Royal
Household with their problems. As the Household became more and more
busy, the King’s Court began to sub-divide into more specialised
bodies. Over time, it gave birth to a body of professional judges
whose job it was to hear disputes between common people. This body
became known as the Court of Common Pleas. One of the demands
which the unhappy King John agreed to in
Magna Carta
was that the Court of Common Pleas would not travel with the king,
but would remain in a fixed place. This was later designated as
Westminster, and the Common Pleas were heard there until the court
ceased to exist, over 660 years later.
There was also a body of
specialised financial advisers, who came to hear disputes involving
the royal revenue. Because the table at which this body sat was
covered with a chequer-patterned cloth, it came to be known as the
Court of Exchequer. It is for this reason also that the
modern-day British Treasurer is known as the Chancellor of the
Exchequer.
Beyond the Common Pleas and the
Exchequer, there remained a group of advisers who continued to
travel with the king. These travelling advisers came over time to
be divided into two sorts: those whose task it was to advise on (or
carry out in the king's name) the resolution of individual disputes,
and those whose job it was to advise on more general questions of
policy. Although there continued for a long time to be considerable
overlap between the two divisions in terms of membership, the
latter became known as the 'Council', while the former became known
as 'King's Bench'. Unlike the Common Pleas, the King's Bench had a
monopoly on those disputes involving the king himself. King’s Bench
later developed into a criminal court because the criminals broke
the King’s peace and order.
These three dispute-resolving
institutions - the Common Pleas, the Exchequer and the King's Bench
- are together known as the common law courts, and their decisions
became common law.
The writ system
The formal division of the King’s
Court into the three common law courts and the Council was an
attempt to cope with the demands of centralised government. But it
was not enough. People still flocked to the new common law in such
numbers that it came close to overload. In response, attempts were
made to regularise and formalise its procedures. The chief means of
systemisation was through what is known as the writ system.
A 'writ' is a written command from
the king that something be done. In the context of legal history, a
writ was a command from the king to the sheriff (the king's
representative in the county) that a person against whom a complaint
had been made (i.e., the defedant) be brought to court to answer the
allegation
The writs were what we would think
of today as standard forms, and for each different type of
complaint, there was a different template. Writs were purchased by
plaintiffs from a royal official - a sort of private secretary to
the king - called the Chancellor, and it was through the royal
authority flowing from the writ that the legal process was begun.
This formalisation did not stop
the demand for the king's justice. The common law continued to
expand, and as more and more cases were taken to the king's courts,
the number of different types of writs grew dramatically. This led
to a reaction on the part of the local lords, who were by now
beginning to be suspicious about the degree to which the king's
system of justice was supplanting their authority over their own
feudal tenants.
Accordingly, in 1258, the nobles
extracted a promise from the king, known as the Provisions of
Oxford, that no new types of writs would be issued without the
express authorisation of the Council (whose membership, of course,
included many of the nobles in question). Because of the popularity
of the common law, the nobles were forced to allow some new writs to
be created. And to accommodate the popular demand for court
hearings in cases where new forms of writ would not be issued, the
common law judges began to permit the use of what are known as
'legal fictions', that is, the use of false allegations of fact, to
enable new types of case to be brought within the bounds of one of
the existing writs.
The story of the writ system is an
important one, for it highlights one of the underlying features of
the common law system, namely its obsession with procedure.
People often express frustration at the extent to which even now
players in the common law process remain preoccupied with questions
of procedural nicety, but they forget that the early common law was
tied so closely to formal rules of pleading. The ability to bring a
suit in the king's courts depended upon being able to find a 'form
of action' which would accommodate the claim.
Trial procedures in
the early common law
The early common law did have some
systemic deficiencies. One of its chief weaknesses was the converse
of a reason for its popularity - the lack of local knowledge on the
part of the king or his deputies.
In the early days, they attempted
to circumvent this problem by an appeal to divine intervention.
Trials by ordeal and battle reflected an expression of faith that
God would identify the wrong-doer. The ordeal was commonly used in
criminal cases. There were different forms of ordeal: the scalding
of a hand or arm with boiling water or the burning of the hand with
a red-hot iron (the healing of the hand or arm within a certain
period of time being a sign from God that the person was not guilty)
were two commonly used ordeals, as was the casting of an accused
person in a pool of water (in which case floating was a sign of
guilt - that he or she had been rejected by the water). Trial by
ordeal came to an end in 1215, when the Church forbade the
participation by priests in the process.
Trial by battle was used in
non-criminal cases, but it was based on a similar premise - that God
would not allow a party in the wrong to be victorious. In a battle,
the participants were each armed with a long staff and a leather
shield, and the fight continued until one party gave up or was
knocked unconscious. Infants, women and the elderly could employ
someone to fight in their stead. It became virtually obsolete by the
end of the thirteenth century, the trial by battle was not formally
abolished until the 19th Century.
Existing alongside the ordeal and
battle was another means of proof whereby a defendant could disprove
allegations made against him or her by producing a certain number of
witnesses who would under oath support the defendant's version of
the facts. Over time, local knowledge set by the witnesses came to
fill the void left by the decline of the ordeal and battle.
What happened was that the
travelling justices would enlist the services of a number of men
from the locality who would, on the basis of their local knowledge,
determine which party was probably telling the truth. These men came
to be known as the 'jury' (from jurare - 'to swear').
Possibly because of the religious symbolism (the number of Apostles
being the same) the number of jurors was eventually settled as 12.
It is important to note that initially, the jury was supposed to act
on the basis of its prior knowledge and assumptions about
truthfulness. The notion of the impartial jury is a comparatively
recent creation.
Equity
As the
common law became more systemised it also became more rigid. What
had begun as an informal (in the sense of being procedurally
simple) and comparatively speedy means of dispute resolution had
instead become not only procedurally complex, but also (because of
the overloading of the courts) often extremely slow.
Moreover, because methods of proof were so primitive, the common law
became preoccupied with form. So, if, for example, a person had
executed a document, the common law would say that he was legally
bound by its terms, even if it could be shown that his actions had
been based on a mistake - or even if they had been induced by a
fraud. It seems a paradox, but the very thing which had made the
common law so popular - its simplicity in procedure and its
preference for pragmatism over form - led to its becoming the
opposite: highly complex in procedure and addictive to form.
Beginning in the fifteenth century, people started again to approach
the king with petitions complaining of injustice - injustice now
often claimed to have been suffered at the hands of the common law
courts. To begin, the king responded to these complaints either
himself, or through the Council. But, as before, he soon began to
delegate responsibility for looking after these petitions for
redress to a royal official. This time, the official chosen was the
Chancellor, the person whose job it was to issue writs.
The fact
that it was the Chancellor who was chosen to address these
complaints of injustice had an important bearing on the way that
they came to be handled. This is because for a long time, the
Chancellors (or Lord Chancellors, as they later became known) were
trained as priests. When they looked into allegations of injustice,
they did not, as the common law judges did, base their judgments on
the judicial precedent. And when they were confronted with vexing
issues of proof, they did not look to form, as their common law
brothers did. Instead, they grounded their judgments on religionary
rules. This body of Chancellor-made, religion-based law became known
as 'equity'. The body set up by the Chancellor to hear equitable
claims became known as the Court of Chancery.
One of
the features of equity is that it is a discretionary system of
justice. In the common law, if a person could prove certain things,
the person established a legal right to a remedy. In equity, in
contrast, the Chancellor retained discretion not to grant a
requested remedy if the plaintiff was not morally deserving. 'Man
who seeks equity must do equity' and 'he/she who comes into equity
must come with clean hands' are statements of equitable principle
(or 'equitable maxims') which capture the essence of this
discretion.
Initially, equity and common law co-existed. Equity was a means of
occasionally tempering the harshness of the law, and cooperation
between the Chancellors and the common law judges was a matter of
course. Eventually the two systems became rivals. In the early
1600s, this rivalry turned into open hostility as a result of
personal enmity between the Chancellor of the day, Lord Ellesmere,
and the Chief Justice of the King's Bench, Sir Edward Coke. Their
dispute was resolved only after the personal intervention of the
king, who called a conference of all the senior judges to discuss
the issue. The conference recommended that in the case of conflict
between the two, equity should prevail. This is still the rule
today.
The
moral aspect of equity is well captured by the so-called 'equitable
maxims', a series of 12 statements upon which equitable doctrine is
supposed to be based. In addition to the two already mentioned, they
are:
-
equity will not suffer a wrong to
be without a remedy;
-
equity follows the law;
-
he/she who is first in time takes
precedence;
-
where the equities are equal, the
law prevails;
-
equity assists the diligent, not
the tardy;
-
equity is equality;
-
equity looks to the intent, rather
than to form;
-
equity looks on that as done which
ought to be done;
-
equity imputes an intention to
fulfill an obligation; and
-
equity acts in personam.
Equity
remains an important source of law today. One very important area of
modern law which is heavily flavoured by equitable principles is the
law of trusts, and important legal remedies which owe their origins
to equity, i.e., equitable remedies, include the injunction, the
declaration and the contractual remedies of rescission and specific
performance.
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