Historical development of English Common Law

Originally issued in the year 1215, the Magna Carta was first confirmed into law in 1225. This 1297 exemplar, some clauses of which are still statutes in England today, was issued by Edward I.

 

English common law emerged from the changing and centralizing powers of the king during the Middle Ages. After the Norman Conquest in 1066, medieval kings began to consolidate power and establish new institutions of royal authority and justice. New forms of legal action established by the crown functioned through a system of writs, or royal orders, each of which provided a specific remedy for a specific wrong. The system of writs became so highly formalized that the laws the courts could apply based on this system often were too rigid to adequately achieve justice. In these cases, a further appeal to justice would have to be made directly to the king. This difficulty gave birth to a new kind of court, the court of equity, also known as the court of Chancery because it was the court of the king’s chancellor. Courts of equity were authorized to apply principles of equity based on many sources (such as Roman law and natural law) rather than to apply only the common law, to achieve a just outcome.

Courts of law and courts of equity thus functioned separately until the writs system was abolished in the mid-nineteenth century. Even today, however, some U.S. states maintain separate courts of equity. Likewise, certain kinds of writs, such as warrants and subpoenas, still exist in the modern practice of common law. An example is the writ of habeas corpus, which protects the individual from unlawful detention. Originally an order from the king obtained by a prisoner or on his behalf, a writ of habeas corpus summoned the prisoner to court to determine whether he was being detained under lawful authority. Habeas corpus developed during the same period that produced the 1215 Magna Carta, or Great Charter, which declared certain individual liberties, one of the most famous being that a freeman could not be imprisoned or punished without the judgment of his peers under the law of the land—thus establishing the right to a jury trial.

In the Middle Ages, common law in England coexisted, as civil law did in other countries, with other systems of law. Church courts applied canon law, urban and rural courts applied local customary law, Chancery and maritime courts applied Roman law. Only in the seventeenth century did common law triumph over the other laws, when Parliament established a permanent check on the power of the English king and claimed the right to define the common law and declare other laws subsidiary to it. This evolution of a national legal culture in England was contemporaneous with the development of national legal systems in civil law countries during the early modern period. But where legal humanists and Enlightenment scholars on the continent looked to shared civil law tradition as well as national legislation and custom, English jurists of this era took great pride in the uniqueness of English legal customs and institutions.

That pride, perhaps mixed with envy inspired by the contemporary European movement toward codification, resulted in the first systematic, analytic treatise on English common law: William Blackstone’s (1723-1780) Commentaries on the Laws of England. In American law, Blackstone’s work now functions as the definitive source for common law precedents prior to the existence of the United States.

 Historical development of American law

The American legal system remains firmly within the common law tradition brought to the North American colonies from England. Yet traces of the civil law tradition and its importance in the hemisphere maybe found within state legal traditions across the United States. Most prominent is the example of Louisiana, where state law is based on civil law as a result of Louisiana’s history as a French and Spanish territory prior to its purchase from France in 1803. Many of the southwestern states reflect traces of civil law influence in their state constitutions and codes from their early legal heritage as territories of colonial Spain and Mexico. California, for instance, has a state civil code organized into sections that echo traditional Roman civil law categories pertaining to persons, things, and actions; yet the law contained within California’s code is mostly common law.

And while Blackstone prevails as the principal source for pre-American precedent in the law, it is interesting to note that there is still room for the influence of Roman civil law in American legal tradition. The founding fathers and their contemporaries educated in the law knew not only the work of English jurists such as Blackstone, but also the work of the great civil law jurists and theorists. Thomas Jefferson, for example, owned several editions of Justinian’s Institutes, and praised the first American translated edition from 1812, with its notes and annotations on the parallels with English law, for its usefulness to American lawyers. Indeed, a famous example of its use is the 1805 case of Pierson v. Post, in which a New York judge, deciding on a case that involved a property dispute between two hunters over a fox, cited a Roman law principle on the nature and possession of wild animals from the Institutes as the precedent for his decision. Today Pierson v. Post is often one of the first property law cases taught to American law students. United States v. Robbins, a 1925 California case that went to the Supreme Court and paved the way for the state’s modern community property laws, was based upon a concept of community property that California inherited not from English common law but from legal customs of Visigothic Spain that dated to the fifth century CE. Cases such as these illuminate the rich history that unites and divides the civil and common law traditions and are a fascinating reminder of the ancient origins of modern law.

 

https: //www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html

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