Common Law & Custom
In this context, common law is used in a sense as distinct from equity. See separate sections on the history and development of equity.
Common law derives its authority from long and immemorial usage and by universal reception throughout the Kingdom according to the highly influential judge, professor and author, 18th century author William Blackstone. The unwritten or common law is divided into three types;
- General Customs which are universal rule of the whole kingdom which form the common law in the narrow sense
- Particular customs affecting parts only of the Kingdom.
- Certain particular laws by customs adopted and used by certain courts
“The cornerstone of laws of England is the general or immemorial custom from time to time and declared in the decisions of courts of justice, preserved in the public records, explained in reports and digested for general use in the authoritative writings of venerable sages of the law.”
The Anglo-Saxon dooms were royal proclamations of the existing laws and the announcement of new laws. The earliest dooms date from the seventh century. There were a number of collections of dooms and the latest being that of Cnut, the late 10th century King of England They concerned public law and contained, for example, laws dealing with administration of justice, revenue, proof, preservation of the pleas, fines and punishment
The code of Alfred dating from the late seventh century combined earlier laws and dooms. There were influenced by Christian thought and the canon law and influenced the early common law.
Some of the fundamental principles such as the protection of the rights of the free man derive from ecclesiastical principles. Many areas of law derive almost entirely from canon and ecclesiastical a such as that in relation to charities, succession, the administration of the states and legitimacy.
Origin & Influences
The common law in the modern sense appears to have come into use at the end of this 13th century. The common law was declared in judicial decisions which derived from general custom. However, the judicial decisions do not merely declare the common law, but they evolve. Formally, the judge is not considered as making law, but as declaring or revealing it.
Precedent is the principle that the law, as declared and found in previous cases, should be applied in new cases. The existing legal principles and precedents should be applied to new combinations of circumstances.
Early common law was reinforced by travelling justices throughout all parts of England. This occurred in parallel with the growth of the central government. Over time it produced uniformity with increasing importance for the King’s Courts.
Anglo-Saxon and Norman customs influences the early common law particularly in relation to land. It reflected feudalism as practised in England. Common law was also of particular importance in the area of criminal law contract and tort.
Study & Education
The study of Roman law was revived during the Renaissance. The Roman law system which is strong on Continent and prevailed in Scotland was attractive in that it constituted a complete and universal code.
A Regis professorship of Civil Law at Cambridge was established by Henry VIII. in which sense is mean to relevant law. Significant Roman law concepts are found in common law. However, the common law predominated and preserved its distinctive character.
An legal education system at the Inns of Courts based on common law teaching became firmly established by the 16th century. By that time, the common law was too well established to be supplanted by Roman law. However, Roman influence remains on the modern system of law.
Custom was primary source of common law in its early period. Ancient criminal courts acted on the basis of customary law. The customs of towns, counties, groups of persons such as merchants, were reflected in the common law principles applicable to them.
Eventually custom yielded to judicial precedent and legislation as law developed. In order for a practice to be considered custom, it must
- Have continued from time immemorial (fixed at 1189 in the later Middle Ages)
- It must have been exercised continuously
- It must be observed as of right, i.e., without forced stealth or request
- It must be reasonable
- It must be in accordance with fundamental principles of right or wrong
- It must not be contrary to statute or other fundamental principles of the common law
- It must be regarded as having binding force
- It must not be inconsistent with other custom.
There are a number of important sources of law dating from the 11th and 12th century. The Quadripartitus c. 1114 appears to have been compiled by ecclesiastic in the reign of Henry I. The work was divided into four parts dealing with Anglo-Saxon laws, contemporary law, procedure and larceny.
The laws of Henry I, (Liges Henricii Primi ) c. 1118 may have been produced by the same person. It is a compilation, continued accounts s of Anglo-Saxon law together with amendments issued by William and Henry. It includes legal memorandum and customs together with reference to Frankish Roman law and Canon law.
Liges Willelmi (dates from the start of the 12th century. It is a completion in Anglo Roman and Latin bilingually. It is known as the bilingual code. It sets out usages and customs guaranteed by William and enforced during the reign of Edward. It includes
- Summary of Anglo-Saxon rules
- those enacted by William, the Conqueror
- General principles of civil law
- Translations of parts of the codes of Cnut.
Leges Edwardi Confessoris is a Latin compilation which appears to be the result of an enquiry into the true nature and extent of laws of the time of Edward the confessor. It appears to have been undertaken by 12 notable men in each county.
Early Statutes & Judgments
From the time of William, the Conqueror to Edward I, legislation declared existing law with amendment. Such statutes were commonly known by their first words and are commonly cited in accordance with the place where the parliament was held, eg. Statute of York, Statute of Westminster.
At that time statutes were void of the offended basic principles of common law. This later principle yielded to the Supremacy of parliament in the 17th century or earlier.
The plea rolls are official document recording the facts and in some cases the judgment. They were recorded at the time of Henry II. There are the exchequer rolls, King’s Bench rolls including civil and criminal cases Court of common Pleas rolls, Eyre and Assize rolls.
The pipe rolls are the Great Rolls of the Exchequer. They record financial details as of the end of the Henry I reign. There is a second series which started in the 1156 and continued until 1832. They claim details of royal debtors’ administration and government personnel.
The Year Books Abridgements and Private Reports are the early common law of reports of judgments. The Year books consist of a series of reports appearing from 1283 to 1536. Their authorship is unknown. It may have been compiled from notes and pamphlets issued by barristers for use by students and later published.
Later Yearbooks may have been compiled by official reporters on behalf of the crown. The Year Books are grouped in accordance with the years of sovereign’s reign. They contain facts of the case, counsel arguments and matters of law. The material may be incomplete in many respect and may contain other extraneous materials. However, as they evolved they became clearer.
The Year Books are not official, but they were recognised and cited as authoritative in later times Coke and Plowden refer to them in their later works.
The Abridgments are collections of reports arranged in accordance with subject matter. They are presented as digests of Year Book cases. There are various different abridgements. Statham’s abridgement dates in the late 15th century and is based on earlier abridgment. It consists of 258 titles with over 3,700 summaries of case law.
Fitzherbert’s Graunde Abridgment 1516 is a three-volume abridgment written by a judge of the common plea. The titles are arranged alphabetically.
Brooke’s abridgment 1574 and Rolls abridgment 1668 are digests of cases under headings and titles.
Early Law Books & Reports
By the early 16th century, private law reports were compiled by various reporters. These are so-called nominate reports bear the name of the originator. The famous reports include Dyers Reports 1537 to 1582, Plowden reports on cases between 1549 and 1578 in the King’s Bench Exchequer and Common Pleas. Coke’s reports in 13 volumes covered the period 1572 to 1616.
A number of very early legal textbooks were hugely influential in the early years of common law. Glanvill from the end of the 12th century was written by a justiciar of Henry II. It was a first guide to on common law. It gives that a coherent account of law as administered in the king’s court. The text is in Latin and set out in the 14 books. Seventy-five writs are set out and their application is discussed. Procedure regarding land is discussed. A Roman law influence is evident.
Bracton to Littleton
Henry de Bracton known as Bracton was a justice of the King’s Court. His De Legibus et Consuetudinibus Angliae was written in the middle of the 13th century. It is in Latin and is ten 10 times the size of Glanvill.
It cites over 5,000 decisions from the Plea Rolls. It is Roman law in style and follows Justinian’s Institutes closely. The first book deals with general principles and the second book deals with commentaries and procedures on writs. It may have been written as a common law manual for judges. It had great influence.
Britton is in the form of a code which was promulgated by Edward I to his subjects in England and Ireland. It is provided in six books.
Fleta is written and Latin and is based on Bracton.
Sir John Fortescue wrote De Laudibus Legum Anglae in 1470 as a manual of instruction on the general laws of England. It is in the form of a dialogue between the author and a prince discussing common and civil law.
Littleton was a judge of the Common Pleas who lived in the 15th century. He wrote a famous treatise on the law of property known as New Tenures. It is written in law French, dealing with common law of land, tenures of estates, as of the late middle ages.
Coke & Bacon
Sir Edward Coke became Attorney General in 1594, a judge of the common pleas in 1606 and chief justice of the King’s Bench in 1616. He was dismissed by King James I in 1616 following a dispute. He was known as the greatest common lawyer of all time and his institutes are based on a mastery of the Year Books.
The first institute is a translation and extended commentary on Littleton’s tenures. It became the standard land law book and is known as Coke on Littleton.
The second institute is a commentary on 39 statutes relating to public law. The third institute describes criminal law. The fourth institute deals with the jurisdiction and history of the courts.
Bacon was chief solicitor attorney general and ultimately Lord Chancellor in 1618. He wrote a very influential books including Maxims of the law in which he commented on 25 legal maxims.
Malynes Hale & Blackstone
Malynes wrote Lex Mercatoria in 1622 setting out the legal basis of bills of exchange and continental mercantile law.
Sir Matthew Hale, chief justice of Kings Bench wrote Jurisdiction of the Lord’s House, an incomplete work history of the common law. He wrote the Pleas of the Crown on criminal law.
Sir William Blackstone 1723 to 1780 was the first professor of English law at Oxford. He was an MP and judge of the common plea. His famous Commentaries of Law of England 1765 is a detailed overview of the legal system of England in four parts, the law of persons, the law of things, private wrongs, public wrongs. Blackstone’s commentaries were very influential in the United States.