common law
Introduction
The historical rise of common law
The feudal land law
Development of a centralized judiciary
Bracton and the influence of Roman law
Early statute law
Growth of Chancery and equity
Inns of Court and the Year Books
The rise of the prerogative courts
Further Roman-law influences
Further growth of statute law
Further development of equity
The modernization of common law in Great Britain
Influence of Blackstone
Reform in the 19th and 20th centuries
Bentham
Changes in procedure and criminal law
Reorganization of the judiciary
Reform in private law
The development of common law in the United States
American innovations
Growth of statute law and codes
Equity and probate
Federal and state judicial systems
Personal and property rights
Comparisons of English, American, and Commonwealth law
Personal law
Property and succession
Tort law
Contracts
Criminal law and procedure
The future of the common law
Additional reading
also called Anglo-American law, the body of customary law, based upon judicial
decisions and embodied in reports of decided cases, which has been administered
by the common-law courts of England since the Middle Ages. From this has
evolved the type of legal system now found also in the United States and in
most of the member states of the Commonwealth of Nations. Common law stands in
contrast to rules developed by the separate acts of equity (q.v.), to statute
law (i.e., the acts of legislative bodies), and to the legal system derived
from civil law (q.v.) now widespread in continental Europe and elsewhere.
The historical rise of common law
English common law originated in the early Middle Ages in the decisions of
local courts, which applied what Blackstone called “the custom of the realm
from time immemorial” and practical reason to everyday disputes with the aid of
but few formal enactments. Until the late 19th century, English common law
continued to be developed primarily by judges rather than legislators.
The common law of England is in fact largely a Norman creation. The
Anglo-Saxons, especially after the accession of Alfred the Great (871),
developed a body of rules resembling those being used by the Teutonic peoples
of northern Europe. Local customs governed most matters, while the church
played a large part in government. The concept of crimes originated in this
era, but they were treated as wrongs for which compensation was made to the
victim.
The Norman Conquest of 1066 brought a practical end to the Saxon laws, except
for some local customs. All of the land was allocated to Norman feudal vassals
of the king. Serious wrongs were regarded mainly as public crimes rather than
as personal matters, and the perpetrators were punished by death and
forfeitures of property. Government was centralized, a bureaucracy built up, and
written records maintained. Royal officials roamed the country, inquiring into
the administration of justice. Church and state were separate and had their own
law and court systems. This led to centuries of rivalry over jurisdiction,
especially since appeals from church courts, before the Reformation, could be
taken to Rome. Some elements of Saxon practice lingered, including trial by
ordeal (by burning the hand, for example), which was retained until 1215.
Outlawry, a Saxon procedure whereby a fugitive was placed outside the
protection of the law, was retained for centuries to deal with people who fled
from justice. Gradually, however, new procedures took the place of these crude
devices.
The Normans spoke French and had developed a customary law in Normandy. They
had no professional lawyers or judges; instead, they used “clerks,” or literate
clergymen, to act as administrators. Some of the clergy were familiar with
Roman law and the canon law of the Christian Church. Canon law was adopted by
the English church, but the Normans resisted any attempt to introduce Roman
law, which was applied only to certain claims under wills in the church courts,
to marine disputes in the admiralty courts from the 14th century, and to
military law. Norman custom was not simply transplanted to England, and a new
body of rules, based on local conditions, grew up.
The feudal land law
At the critical formative period of common law, the English economy depended
largely on agriculture. Wages and profits were important only in commercial
centres such as London, Norwich, and Bristol. Political power was rural and
based on landownership. Landowners voted at elections as Parliament evolved,
and they acted as sheriffs and magistrates and sat on juries.
Land was held under a chain of feudal relations. Under the king came the
aristocratic “tenants in chief,” then strata of “mesne,” or intermediate
tenants, and finally the tenant “in demesne,” who actually managed the
property. Each piece of land was held under a particular condition of tenure;
that is, in return for a certain service or payment. An armed knight, for
example, might have to be provided to serve in the king's armies for a certain
period each year. Nonmilitary service, such as making deliveries of grain, was
often substituted for the uncertain obligations of knight service. Periodic
services tended to be commuted into fixed annual payments, which ceased, under
the impact of inflation, to have much value. The “incidents,” or contingency
rights, however, such as the right of the feudal lord to take the land if the
tenant died without heirs and his rights regarding wardship and marriage of the
tenant's infant heirs (that is, his rights to compensation for exercising
wardship or granting permission to marry) were assessed at current land values
and remained important.
Succession to tenancies was regulated by a system of different “estates,” or
rights in land, which determined the duration of the tenant's interest. Land
held in “fee simple” meant that any heirs could inherit (that is, succeed to
the tenancy), whereas land held in “fee tail” could pass only to direct
descendants. Life estates (tenancies lasting only for one person's lifetime)
could also be created. Title to land was transferred by a formal ritual rather
than by deed because the population was largely illiterate. Few elaborate rules
about the terms by which land was held could be agreed upon in such
circumstances, so statutes were passed to regulate matters of detail. The life
tenant, for example, was forbidden in the 13th century to use the property in
such a way as to damage it or to cause it to deteriorate unless the grant
specifically allowed it, and the tenant “in tail” was forbidden to ignore the
system of descent laid down for his property. The common-law judges devoted
themselves to working out the proper rules to apply to all of these estates and
tenures.
Primogeniture—i.e., the right of succession of the eldest son—became
characteristic of the common law. It was designed only for knight-service
tenures but was inappropriately extended to all land. This contrasted with the
widespread practice on the Continent, whereby all children inherited equal
shares.
Development of a centralized judiciary
The unity and consistency of the common law were promoted by the early dominant
position acquired by the royal courts. A single royal court, the King's Court
(Curia Regis), was set up for most of the country at Westminster, near London.
Whereas the earlier Saxon witan, or king's council, dealt only with great
affairs of state, the new Norman court assumed wide judicial powers. Its judges
(clergy and statesmen) “declared” the common law.
By straining the interpretation of a statute, royal judges greatly reduced the
jurisdictions of local courts. With their increased powers, royal judges went
out to provincial towns “on circuit” and took the law of Westminster everywhere
with them, both in civil and in criminal cases. Local customs received lip
service, but the royal courts controlled them and often rejected them as unreasonable
or unproved: common law was presumed to apply everywhere until a local custom
could be proved. This situation contrasted strikingly with that in France,
where a monarch ruled a number of duchies and counties, each with its own
customary law, or of the situation in lands such as Germany and Italy, which
were divided into independent kingdoms and principalities with their own laws.
This early centralization also removed the need for England to import a single
advanced foreign system of law, a need that led to the reception of Roman law
in Europe after the decline of feudalism. The expression common law, devised to
distinguish the general law from local or group customs and privileges, came to
suggest to citizens a universal law, founded on reason and superior in type.
In the 13th century the common central court split into three courts—Exchequer,
Common Pleas, and King's Bench. Although the same law was applied in each, they
vied in offering better remedies to litigants in order to increase their fees.
The court machinery for civil cases was built around the writ system. Each writ
was a written order in the king's name issued at the instance of the
complainant and ordering the defendant to appear in the King's Court or
ordering some inferior court to see justice done. It was based on a form of
action (i.e., on a particular type of complaint, such as trespass), and the
right writ had to be selected to suit that form. Royal writs had to be used for
all actions concerning title to land.
Bracton and the influence of Roman law
Under Henry III, who reigned from 1216 to 1272, an assize judge (i.e., an
itinerant judge of the periodical local assize courts), Henry de Bracton
(originally Bratton), prepared an ambitious treatise known as “Bracton.” It was
modeled on the order of the 6th-century Roman legal classic, the Institutes of
Justinian, and shows some knowledge of Roman law. Its English character derived
from the space it devoted to actions and procedure, to the reliance on judicial
decisions as declaring the law, and to the statements limiting absolute royal
power. Bracton abstracted several thousand cases from court records (plea
rolls) as the raw material for his book. The plea rolls formed an almost
unbroken series from 1189 and included the writ, pleadings, verdict, and
judgment of each civil action.
Early statute law
Edward I has been called the English Justinian because his enactments had such
an important influence on the law of the Middle Ages. Edward's civil
legislation, which amended the unwritten common law, remained for centuries as
the basic statute law. It was supplemented by masses of specialized statutes
that were passed to meet temporary problems.
Four of Edward's statutes deserve particular mention. The first Statute of
Westminster (1275) made jury trial compulsory in criminal cases and altered
land law. The Statute of Gloucester (1278) limited the jurisdiction of local
courts and extended the scope of actions for damages. The second Statute of
Westminster (1285), a very long enactment, confirmed the estate tail in land,
which had often been linked with the maintenance of titles of honour; made land
an asset for purposes of paying judgment debts (debts judged to exist by a
court); liberalized appeals to high circuit courts; improved the law of
administration of assets on death; and created a new form of action, action on
the case, that gave broad approval to the creation of new remedies for new
types of contract and tort cases. The Statute of 1290 (Quia Emptores) barred
the granting of new feudal rights, except by the crown, and made all land held
in fee simple freely transferable by denying interference by relatives or
feudal lords.
In modern times the statutes issued prior to 1285 are sometimes treated as
common law rather than statute law. This is because these laws tended to
restate existing law or give it a more detailed expression. They explained what
the law was, but they did not make an entirely new law; some authorities, in
fact, doubted whether governments had the right to change ancient customs at
all. In addition, judges did not always adhere closely to the words of the
statute but tried to interpret it as part of the general law on the subject.
Prior to the rise of the House of Commons in the 13th century, it also was
difficult to distinguish acts of Parliament from the less binding decisions or
resolutions of the royal council, the executive authority. Some statutes were
passed but never were put into force, while others seem to have been quietly
ignored.
The second Statute of Westminster, however, clearly made new law and allowed
time for citizens to study its provisions before it came into force. Even so,
this statute was freely interpreted by the courts, who read into it things that
were not in the text.
Growth of Chancery and equity
Since legal rules cannot be formulated to deal adequately with every possible
contingency, their mechanical application can sometimes result in injustice. In
order to remedy such injustices, the law of equity (or, earlier, of
“conscience”) was developed. The principle of equity was as old as the strict
common law, but it was hardly needed until the 14th century, since the law was
still relatively fluid and informal. As the law became firmly established,
however, its strict rules of proof began to cause hardship. Visible factors of
proof, such as the open possession of land and the use of wax seals on
documents, were stressed, and secret trusts and informal contracts were not
recognized.
Power to grant relief in situations involving potential injustices lay with the
king and was first exercised by the entire royal council. Within the council,
the lord chancellor, a leading bishop, led the meetings and, by 1474, dealt
personally with petitions for relief. Eventually the chancellor's jurisdiction
developed into the Court of Chancery, whose function was to administer equity.
Much of the work concerned procedural delays and irregularities in local
courts, but gradually the power to modify the operation of the rules of common
law was asserted.
The chancellor decided each case on its merits and had the right to grant or
refuse relief without giving reasons. Common grounds for relief, however, came
to be recognized. They included fraud, breach of confidence, attempts to obtain
payment twice, and unjust retention of property.
Proceedings began with bills being presented by the plaintiff in the vernacular
language, not Latin; the defendant was then summoned by a writ of subpoena to
appear for personal questioning by the chancellor or one of his subordinates. Refusal
to appear or to satisfy a decree was punished by imprisonment. Because the
defendant could file an answer, a system of written pleadings developed.
Inns of Court and the Year Books
During Edward I's reign (1272–1307) the office of judge was transformed from a
clerical position into a full-time career. Admission to the bar (i.e., the
right to practice as a barrister before a court) was made conditional on the
legal knowledge of the applicant so that law began to emerge as a profession
which required permanent institutions and some kind of organized education.
As the legal profession grew, the more experienced barristers were admitted to
the dignity of serjeant-at-law and later banded together with the judges, who
were appointed from their ranks, at Serjeants' Inns, in London. There, burning
legal problems were informally discussed, and guidance was given to all
concerning the decisions of actual or likely cases. The four Inns of Court
(Gray's Inn, Lincoln's Inn, Inner Temple, and Middle Temple) evolved from the
residential halls of junior barristers to become the bodies officially
recognized as having the right to admit persons to the bar. Education consisted
of attending court, participating in simulated legal disputes (moots), and
attending lectures (readings) given by senior lawyers.
Bracton's work was adapted for purposes of study for a time, but it soon became
outdated. Bar students therefore had to make notes in court of actual legal
arguments in order to keep abreast of current law practices. These notes varied
widely in quality, depending on the ability of the notetaker and the regularity
of his attendance, and from about 1290 they seem to have been copied and
circulated. In the 16th century they began to be printed and arranged by regnal
year, coming to be referred to as the Year Books.
The Year Book reports were written in highly abbreviated law French. They did
not always distinguish between the judges and barristers and often simply
referred to them by name. The actual judgment also was often omitted. Previous
decisions were not generally binding, but great attention was paid to them, and
it appears that the judges and barristers referred to earlier Year Books in
preparing their cases. Thus, case law became the typical form of English common
law.
The dynastic Wars of the Roses in the latter part of the 15th century led to a
practical breakdown of the legal order. Powerful hereditary aristocrats in the
country, backed by private armies, and dominant commercial families in the
towns were beyond the effective reach of the royal writ. When legal proceedings
were possible, they were often manipulated or frustrated by the crown's
“overmighty subjects,” who intimidated and corrupted justices, sheriffs,
juries, and witnesses.
Thus the years preceding the Tudor period were a time of insecurity and
stagnation, a “Gothic age” in which lawyers tried to consolidate the law but
made no new advances. Parliamentary authority also was weakened, and the royal
council was called on more and more to rule the country and try to maintain
order.
The rise of the prerogative courts
The accession of Henry VII in 1485 was followed by the creation of a number of
courts that stood outside the common-law system that Henry II and his
successors had instituted. These newer courts were described as prerogative
courts because they were identified with the royal executive power, although
some of them had a statutory origin. Thus, the Council of the North at York was
set up by statute in 1537, and the Council of Wales and the Marches at Ludlow
was confirmed by statute in 1543, though both had been preceded by older
prerogative courts in those “frontier” regions. The Court of Requests (see
below) was given regular status by an administrative action in 1493. The Court
of Star Chamber, once thought to have been given its authority by a statute of
1487, is now believed to have evolved from the royal council, which began
acting as a judicial committee in the early 16th century. All these courts
rested on the comparative authority and efficiency of the council in times when
regular courts were unable to operate properly.
In the Court of Requests, which had counterparts in France, the costs of
procedure were lower than in common-law proceedings; it was designed to
accommodate small civil claims by the poor. The judges of the court were styled
masters of requests, and they had many other duties, which often caused delays.
The court flourished in the 17th century until the Civil War (1642–51), when
the procedure by which it operated was abolished. Its example of offering a
simple, cheap procedure was imitated by several statutory courts that were set
up in towns in later times, also known as courts of requests.
Whereas the common-law courts punished “hanging crimes,” such as murder and robbery,
the Star Chamber dealt with more sophisticated offenses, such as forgery,
perjury, and conspiracy. Fines and sentences of imprisonment were the usual
punishment. Common-law judges, lay peers, and bishops sat on this court, which
also exercised civil jurisdiction. It lost its original popularity when the
early Stuart kings used it to stifle political opposition, and its name
eventually became synonymous with repression. It was abolished in 1641, and
most of its jurisdiction was absorbed by the common-law courts in 1660.
The rather specialized High Court of Admiralty developed under royal
prerogative in the 14th century; a statute of 1391 prohibited it from meddling
in cases not arising at sea. In Tudor and early Stuart times, however, it
exercised a wide commercial jurisdiction. After the Civil War it was confined
exclusively to trying maritime disputes.
Further Roman-law influences
As described above, the common law had begun to break down in the 15th century.
Abroad, law was in a state of flux. The customs of northern France were
codified in 1453, and modified Roman law became a main source of imperial
German law in 1495 and of Scots law in 1532. At the same time, the scope of
canon and Roman law in England was increasing. Admiralty law, for example, drew
on Greek, Roman, and Italian law and used documents drawn up in continental
form, and the crimes of forgery and libel tried in Star Chamber were based on
Roman models. Ecclesiastical courts applied canon-law rules based on Roman law,
for example, to wills and marriages. The Councils of Wales and the North also
used Roman law. All of these bodies competed with common-law courts for
jurisdiction over the same cases and followed a written procedure modeled after
that still being used on the Continent. Roman law and canon law, furthermore,
were taught at Oxford and Cambridge, which gave doctorates to the practitioners
in these courts.
One of the accusations reportedly made against Thomas Cardinal Wolsey, who fell
from favour in 1529, was that he planned to introduce Roman law into England;
Wolsey did appoint many clergy to the Council of the North and as justices of
the peace. The 19th-century English legal historian F.W. Maitland discussed
this legal crisis in a famous essay on English law and the Renaissance.
Maitland ascribed the survival of the common law, in part, to the solid front
presented by the Inns of Court, which trained lawyers practically and not
theoretically. The English law tradition did not depend on abstract scholarly
commentaries but on detailed judicial rulings about specific points of law
arising in practice.
The influence of Roman-law ideas, however, was probably greater than generally
admitted. The actions of trespass and disseisin (dispossession) had Roman
analogies, and the estate tail was clearly influenced by a law made by
Justinian. The equitable remedy of injunction had analogies in canon law, and
the law of redemption of mortgages may have been related to the usury laws,
which forbade making excessive profits from loans. The law of trusts and deceit
resembled the breach of faith of the church courts. Continental mercantile law,
which contained Roman-law elements, was absorbed into English law as it stood.
Continental law also contributed to some of the rules of contract, such as the
effect of mistake, and the Roman concept of fault played a part in the law of
negligence. Many old European legal ideas, in fact, survived longer in England,
where they escaped being eliminated in codifications, than in Europe.
An account of the development of common law in the Tudor-Stuart period would be
incomplete without mention of Sir Edward Coke. Coke, who combined a
distinguished career as a barrister and a judge, produced a wealth of legal
writings. In 1606 he risked removal from the office of chief justice by
challenging the exaggerated claims of the royalist party to prerogative powers
outside of the common law. He disapproved of legislation by proclamation, of
dispensation from the law in individual cases, and of the mushrooming jurisdictions
of the prerogative courts. He helped draft the Petition of Right in 1628.
Coke's 11 volumes of Reports appeared between 1600 and 1615, and two posthumous
volumes followed. Coke commented, rather than reported, but he was careful to
supply a copy of the court record of each case. As the only formal series of
collected law cases available at the time, his reports formed the main source
for the citation of cases for many years. His four volumes of Institutes of the
Lawes of England, published between 1628 and 1644, dealt with the law of real
property (Coke on Littleton), the medieval statutes, the criminal law (pleas of
the crown), and the jurisdiction of the courts.
Coke was no objective historian but an open advocate of the common law. Though
he was old-fashioned and at times in error, his greatest works restated the
common law in acceptable form and did much to save it.
Further growth of statute law
The Tudors made use of proclamations by the king to invoke emergency measures,
to establish detailed regulations, especially on economic matters, and to grant
royal charters to trading companies. Parliament passed laws of a political
character, such as those enforcing the king's supremacy over the new
established church. Statutes also regulated imports and exports, farming, and
unfair competition. A law of 1562–63 regulated apprenticeships and provided for
annual wage fixing by magistrates in accordance with the cost of living.
Among other statutory innovations were the Statute of Monopolies of 1623, which
confirmed that monopolies were contrary to common law but which made exceptions
for patentable inventions; a statute of 1601 that became the basis of the
privileges enjoyed by charitable trusts; and the series of Poor Laws, which
were enacted in the late 16th century to remedy the neglect of the poor caused
by the dissolution of the monasteries.
In 1540 legal actions to recover land were subjected to time limits, and in
1623–24 the principle of limitation of actions by lapse of time was introduced
into the law of contract and tort.
During the Commonwealth (1649–60) many reform projects were drafted; although
they anticipated 19th-century reforms, none of them was carried out. These
reforms included supplying counsel to prisoners, modernizing the land and law
procedure, and permitting civil marriages.
The outstanding enactment of the later Stuart period was the Statute of Frauds
of 1677. As a response to the growth of literacy and the prevalence of perjury
and fraud, wills and contracts for sale of land or goods (of more than a
certain amount) were required to be in writing. Though drafted by eminent
judges, the statute was to require endless interpretation.
Further development of equity
Although one eminent contemporary observer, the legal historian John Selden,
regarded the fate of a lawsuit in Chancery as varying with the chancellor's
personality, the types of suits that would be granted relief had eventually
become fairly clear. Precedent was being followed, and law reports of equity
decisions and books on equity began to be published.
In 1615 the King declared that the Chancery was to retain its traditional
superiority over the common-law courts but only in areas in which its authority
was well recognized. If the applicability of equity was in doubt, the common
law was to be followed.
The main development in this period was in the law of trusts (see property
law). In medieval England, from the 14th century, most land was held “to uses”;
i.e., by nominees for the true owners. This situation may have been partly due
to devices used to evade taxation, but it also enabled wills of land to be
made. “Death duties” were payable if a man died while he was the legal
proprietor; by transferring the land to another person, these could be avoided.
Wills of land were not allowed before 1540, but the use of land could be
transferred to another person while the owner was still alive, as long as the
transferee observed the owner's wishes regarding the land while the owner
lived. The beneficiary of such a trust usually stayed on the land as apparent
owner, though the trustee held the legal title. A statute of Richard III,
however, allowed the beneficiary to transfer the property, and in 1535–36 the
Statute of Uses eliminated the middleman and revested the legal title in the
beneficiary. The device of the use was exploited to create new and complicated
legal interests in land. The old use was revived as the modern trust in
Chancery, first for trusts involving money and leases and finally for trusts of
land itself. The spur was the desire to separate the legal and beneficial
titles, especially when the beneficiary was young or inexperienced. But the
trust was adapted to many other ends, such as giving property to clubs and
other unincorporated bodies and to churches.
The modernization of common law in Great Britain
Influence of Blackstone
Of extraordinary influence in the development of common law and in its
dissemination to other parts of the world was the most famous of English
jurists, Sir William Blackstone. Born in 1723, he entered the bar in 1746 and
in 1758 became the first person to lecture on English law at an English
university.
His most influential work, the Commentaries on the Laws of England, was
published between 1765 and 1769 and consisted of four books: “Persons” dealt
with family and public law; “Things” gave a brilliant outline of real-property
law; “Private Wrongs” covered civil liability, courts, and procedure; and
“Public Wrongs” was an excellent study of criminal law.
Blackstone was far from being a scientific jurist and was criticized for his
superficiality and lack of historical sense. The shortcomings of the
Commentaries in these respects, however, were offset by its style and
intelligibility, and lawyers and laymen alike came to regard it as an authoritative
exposition of the law. In the following century the fame of Blackstone was even
greater in the United States than in his native land. After the Declaration of
Independence the Commentaries became the chief source of knowledge of English
law in the New World.
Reform in the 19th and 20th centuries
Bentham
Following the social turmoil of the French Revolution and the economic upheaval
of the Industrial Revolution, there were many demands for reforms to modernize
the law. The most significant figure in the reform movement was the English
Utilitarian philosopher Jeremy Bentham, who was prepared to reform the whole
law along radical lines. A brilliant student, Bentham disliked the picture of
the law that was presented in Blackstone's lectures. In 1769 he entered the
bar, but since he was living on an inheritance, he never found it necessary to
enter practice. He worked to make law less technical and more accessible to the
people, but he was slow to complete or publish his writings, and not until 1789
did his basic work, An Introduction to the Principles of Morals and
Legislation, appear.
Bentham attacked legal fictions and other historical anomalies. He advocated
two basic changes in the legal system: in order to achieve the greatest
happiness for the greatest number, legislators, rather than courts, should make
the law; and the aims of law should vary with time and place.
The fame of the Principles spread widely and rapidly. Bentham was made a French
citizen in 1792, and his advice was respectfully received in most of the states
of Europe and America. Although he wanted most of all to be allowed to draw up
a legal code for his own or some foreign country, his practical influence was
far more indirect and derived largely from the diffusion of Utilitarian ideas
during the 19th century.
Changes in procedure and criminal law
In England the restrictive framework of the separate forms of action in civil
cases was replaced in 1852 by a new system of uniform writs of summons, and
liberal amendment of pleadings was permitted. Fixed dates were established for
trials. In 1933 jury trial was ended in civil cases, except in libel and a few
other actions. Evidence acts of 1938, 1968, and 1972 simplified civil proof. A
major trend in criminal procedure since the early 19th century has been better
protection of the rights of the accused. Since 1836 the accused has been
entitled to counsel and since 1898 has been allowed to testify on his own
behalf. In 1903 provision for the state to pay for defense was made and since
expanded, and in 1907 the right of appeal against criminal convictions was
created. In 1967 verdicts by a majority of the jury were made possible, and
restrictions were imposed on press coverage of preliminary hearings.
The 19th century saw the enactment of a series of statutes that codified the
part of criminal law dealing with individual crimes, apart from homicide. Basic
ideas have changed little, other than the fact that some modern statutes have
imposed responsibility without fault and that corporations can now be held
responsible for the acts of their management.
The rules of legal insanity were laid down in the 19th century and supplemented
in 1957 by the limited defense of “diminished responsibility.” Capital
punishment was gradually ended for most felonies and was finally eliminated for
murder by the Homicide Acts of 1957–65. In 1968 a new Theft Act replaced the
rather crude medieval idea of larceny by a broader concept that resembles the
Roman delict (offense) of theft. Experimentation has led to new remedies, one
of these being the suspended sentence, which only has to be served if a further
crime is committed.
Reform in the 19th and 20th centuries
Reorganization of the judiciary
The lay jurisdiction of the church courts ended in 1857, when the divorce and
probate courts were set up. These merged into the High Court of Justice in 1875
as a result of the Judicature Acts of 1873–75, which reformed the civil courts.
The Judicature Acts were much more than a regrouping and renaming of courts; they
attempted to fuse law and equity by making available legal and equitable
remedies in all divisions of the High Court and by providing that the equitable
rule should prevail when conflicts arose. Common law and equity nevertheless
preserved their separate identities, partly because of the different subject
matter with which they often dealt and partly because lawyers persisted in
maintaining the distinction.
In the late 19th century the three central courts of common law were
amalgamated as the Queen's Bench Division, which to this day continues to try
suits for damages. Since 1875 cases have been tried by a single judge (before
1933 with a jury), not by a full bench of judges.
After it became a division of the High Court in 1875, the Chancery not only dealt
with equity suits but also administered the voluminous legislation on property,
bankruptcy, succession, copyrights, patents, and taxation. Contested probate
cases were transferred to the Chancery by the Courts Act of 1971.
Before the Courts Act criminal cases were tried two or three times a year at
assizes or four times a year at quarter sessions in the provinces. As of
January 1972 a system of provincial crown courts replaced these. Civil assizes
were replaced by allowing the High Court to sit at certain cities. Small civil
cases, tried at statutory county courts since 1846, are now regulated by an act
introduced in 1984.
A remarkable feature of English criminal justice, as compared with most
European systems, has been the continuing role of lay justices of the peace,
who remain important despite the appointment of paid, legally trained
magistrates in London and some of the larger cities, of barristers as recorders
at borough quarter sessions, and of legally qualified chairmen at county
quarter sessions. An important aspect of the magistrates' work has been their
jurisdiction over young offenders, for whom special juvenile courts were first
set up in 1908. The report of a royal commission on justices of the peace in
1948 strongly defended the position of lay justice against public criticism;
its cautious recommendations as to the appointment of justices and as to the
organization of their courts were largely put into effect by the Justices of
the Peace Act (1949) and the Magistrates' Courts Act (1980). The Criminal
Justice Administration Act (1962) extended the power of justices of the peace
to try indictable offenses summarily. A series of statutes in 1972, 1973, 1977,
1981, and 1982 rendered the procedure more flexible, made detailed provision
for penalties and their execution, and added a number of new offenses. In 1964
elementary judicial training for lay justices was introduced. These
developments since 1948 show both the persistence in English law of ancient
institutions and a preference for reforming rather than totally abolishing
them.
A modern appellate court for civil cases in the High Court was set up in 1830
but was replaced in 1875 by a Court of Appeal consisting of special appellate
judges. In 1907 a Court of Criminal Appeal was established, but it was merged
into the Court of Appeal in 1966. A divisional court hears appeals from
magistrates on points of law. A final appeal, subject to conditions, can be
made to the House of Lords from all lower courts.
Reform in private law
Property law has been changed often. Wills are regulated mainly by a statute of
1837 (amended in 1982), and the freedom to disinherit has been curtailed by
family provision acts of 1938, 1952, 1966, and 1975. Title to land is subject
to a system of registration that has been gradually introduced under an act of
1925. Succession on intestacy (i.e., in the absence of a valid will) for all
kinds of property was unified in the same year. The law of leases has been
modified by social legislation such as the numerous Rent (control) Acts, which
protect residential tenants. The terms of trusts can be modified by the
Chancery (since 1958), and a wider range of trustee investments has been
allowed since 1961.
Grounds for divorce have been enlarged by a number of 20th-century statutes,
culminating in the broad “breakdown of marriage” approach of the Divorce Reform
Act of 1969, now the Matrimonial Causes Act of 1973 (as amended in 1984). Under
this legislation a marriage may be terminated not only on traditional fault
grounds but also when the parties have lived apart for at least two years and
consent to divorce or when the parties have been separated for at least five
years.
After several piecemeal laws addressed trade (labour) unions, a more
comprehensive, but controversial, Industrial Relations Act was passed in 1971,
requiring registration of unions and arbitration of disputes. This statute was
repealed in 1974, but aspects of it were revived with considerable modification
in 1980 and 1982.
In the field of tort, manufacturers' liability to consumers was established by
case law in 1932 and later strengthened by legislation. Liability in libel has
been cut down by many statutes. A law of 1945 introduced the Roman principle of
apportioning damages when both parties are at fault.
Commercial law, with the Bills of Exchange Act (1882), Sale of Goods Act (1893
and 1979), the Unfair Contract Terms Act (1977), and consumer protection
statutes in 1965 and 1974, has become primarily the domain of legislation.
Arbitration, too, is regulated by statute.
The development of common law in the United States
The first English settlers on the Atlantic Seaboard of North America brought
with them only elementary notions of law. Colonial charters conferred on them
the traditional legal privileges of Englishmen, such as habeas corpus and the
right to trial before a jury of one's peers, but there were few judges,
lawyers, or lawbooks, and English court decisions were slow to reach them. Each
colony passed its own statutes, and governors or legislative bodies acted as
courts. Civil and criminal cases were tried in the same courts, and lay juries
enjoyed wide powers. English laws passed after the date of settlement did not
automatically apply in the colonies, and even presettlement legislation was
liable to adaptation. English cases were not binding precedents. Several of the
American colonies introduced substantial legal codes, such as those of
Massachusetts in 1648 and of Pennsylvania in 1682.
By the late 17th century, lawyers were practicing in the colonies, using
English lawbooks and following English procedures and forms of action. In 1701
Rhode Island legislated to receive English law in full, subject to local
legislation, and the same happened in the Carolinas in 1712 and 1715. Other
colonies, in practice, also applied the common law with local variations.
Many legal battles in the period leading up to the War of Independence were
fought on common-law principles, and half of the signatories of the Declaration
of Independence were lawyers. The U.S. Constitution itself uses traditional
English legal terms.
After 1776 anti-British feeling led some Americans to advocate a fresh legal
system, but European laws were diverse, couched in foreign languages having
unfamiliar turns of thought, and unavailable in textbook form. Blackstone's
Commentaries, reprinted in America in 1771, was widely used, even though new
English statutes and decisions were officially ignored.
In the 1830s two great judges, James Kent of New York and Joseph Story of
Massachusetts, produced important commentaries on common law and equity,
emphasizing the need for legal certainty and for security of title to property.
These works followed the common-law tradition, which has never been
fundamentally altered in the United States, except in Louisiana, where French
civil law has survived.
American innovations
The American states saw law as a cementing force, and they used it to
facilitate cooperation in the face of the hazards of nature and other
difficulties arising in the development of the new continent. Special laws were
developed to deal with timber, water, and mineral rights. Simple procedures
were followed. Dogma was rejected in favour of personal experience and
experiment, and old decisions soon became outdated. The pioneer spirit favoured
freedom and initiative and distrusted central authority and a paternal
government. Homespun local justice was preferred, as was the common sense of
the local jury. For a time some of the colonies even tried to base their law on
the Bible. But, even when English law reasserted itself, many of its
institutions were rejected. On death intestate, for example, all of the
children inherited land in America and not just the eldest son, as in England.
Freehold title was the rule, not long leases under landlords. Church courts did
not exist.
The development of common law in the United States
American innovations
Growth of statute law and codes
After the War of Independence a drive to replace judge-made law by popular
legislation was revived. In 1811 Jeremy Bentham proposed a national civil code
to Pres. James Madison, but his proposal was premature. In the mid-19th
century, the legal reformer David Dudley Field presided over the drafting of
several codes and campaigned vigorously for the systematic, rational
codification of U.S. law. Except for a code of civil procedure, which was
widely copied, Field's codes found little acceptance in state legislatures.
Field's civil code was adopted by five states, including California and New
York, but the common-law tradition was so strong in these jurisdictions that
the civil code became just another statute; it was read against the background
of, and supplemented by, existing case law, rather than seen as a complete set
of authoritative starting points for legal reasoning as were the continental
civil codes. Louisiana, whose legal system is a hybrid of civil- and common-law
elements, is the only American state that has a code in the civil-law sense.
Despite the failure of the codification movement, U.S. law became increasingly
statutory, so that by the late 20th century legislation predominated over
judge-made law.
U.S. statutes are not construed so narrowly as those in England, and there is
less reluctance to change the older law. Statutes are also regularly revised; for
example, New York state has had a Law Revision Commission since 1934.
Equity and probate
In 18th-century England the Court of Chancery administered equity and the
church courts handled the probate of wills. In the American colonies the
governor and his council acted as a court of equity. For a time after
independence, equity was suspect as a remnant of royal prerogative, but it has
come to be generally applied by the same court as the regular law. Although
U.S. common law is more flexible than English law, and the need for equity is
less, important remedies have nevertheless been developed within the system.
Probate, with a few exceptions, is usually a matter for the regular courts.
American innovations
Federal and state judicial systems
State courts try 90 percent of all civil and criminal cases. Local magistrates
may sit on county or district courts. One appeal is always given, and two
levels of appeals exist in many states. The highest court is usually called the
supreme court of the state, but this varies. In New York state, for example,
the Supreme Court is a trial court, and the highest court is the Court of
Appeals.
The Constitution of 1789 set up a federal Supreme Court, and the 1789 Judiciary
Act provided for federal district courts and circuit courts. The plan for
inferior courts has undergone changes from time to time, notably in 1891, when
circuit courts of appeal were established, and in 1911, when the old circuit
courts were abolished.
Most federal law is statutory and enforced by federal courts. Laws concerning
tax, labour, securities regulations, admiralty, interstate commerce, antitrust,
patent, and copyright matters fall into this category. By a decision of 1803,
the Supreme Court became the ultimate authority for determining the conformity
of all legislation with the federal Constitution, which guarantees many
fundamental rights.
To ensure the fair treatment of out-of-state citizens or of corporations
incorporated elsewhere, federal courts can try cases involving a diversity of
citizenship. In such cases they act as if they were state courts, however,
being bound by state statutes since 1842 and by state interpretations of common
law and equity since 1938. Federal procedure is followed, but state rules on
vital matters, such as statutes of limitations, are enforced.
Federal courts also try claims by and against the United States, such as cases
undertaken to protect federal assets. In the absence of statutory provisions
for such cases, a “federal common law” is applied.
Personal and property rights
The guarantees of due process of law given in Magna Carta in 1215 and the
English Bill of Rights of 1689 are reflected in the first ten amendments to the
federal Constitution, which were passed in 1791 and are known as the Bill of
Rights. Since the passage of the Fourteenth Amendment in 1868, the rights of
life, liberty, and property have been protected from deprivation by both the
states and the federal government without due process of law; this has tended
to shield private property from government regulation and private contracts
from government interference. The use of property, however, is increasingly
restricted by zoning laws and health and safety measures, and the acquisition
of property for public purposes may be justified under the doctrine of eminent
domain (power of the government to take private property for public use without
the owner's consent upon payment of compensation).
The 1929 Depression was followed by the rejection by the Supreme Court of many
welfare measures. Since 1937, however, the power of the Congress to regulate
the economy under its authority to oversee interstate commerce has generally
been upheld by the Supreme Court. State legislation is, as a rule, also held to
be constitutional in this area. Minimum-wage laws and the right to collective
bargaining in industry are recognized as well.
Since the 1950s the emphasis in constitutionality cases has shifted to human
rights. The requirement of “equal protection of the laws” and the Civil Rights
Act of 1866 led to the ruling in 1954 that public schools must be racially
integrated and to later rulings against using public funds for segregated
private schools. The Federal Civil Rights Act of 1964 applies not only to
official laws and actions but also to the conduct of private citizens. Thus, no
discrimination on the basis of race, sex, religion, or national origin is
allowed in places of public entertainment or resort or in employment practices
by larger firms.
Since 1962 the Supreme Court has insisted on a regular redrawing of electoral
districts to give each vote roughly the same value (seat reapportionment). It
has also interpreted the constitutional prohibition of the establishment of a
state religion to render school prayers and religious instruction illegal. In 1971
freedom of the press was held to justify The New York Times in publishing
confidential political material.
Comparisons of English, American, and Commonwealth law
The legal systems rooted in the English common law have diverged from their
parent system so greatly over time that in many areas the legal approaches of
common-law countries differ as much among themselves as they do with the
civil-law countries. Indeed, England and the United States have so many legal
differences that they are sometimes described as “two countries separated by a
common law.” The most striking differences are found in the area of public law:
England has no written constitution and no judicial review, whereas every court
in the United States possesses the power to pass judgment on the conformity of
legislation and on other official actions to constitutional norms. Throughout
the 20th century, many areas of U.S. law have been “constitutionalized” by the
increasing exercise of judicial power. Other factors that account for much of
the distinctiveness of public law in the United States are its complex federal
system and its presidential, as distinct from parliamentary, form of
government. In the area of private law, however, family resemblances among the
common-law systems are much greater. Yet even there, despite broad basic
similarities, the common-law countries have developed distinctive variations
over time.
Personal law
The law of personal status (nationality, capacity, domicile, and so on) has
been transformed by the advancement of the principle of equality of the sexes.
In the area of divorce law, the intense legislative activity of the 1960s and
1970s left most common-law countries with systems of “mixed grounds” for
divorce: one can obtain a divorce either for the fault of the other spouse or
upon some no-fault ground such as separation or breakdown of the marriage. A
minority of U.S. states have eliminated fault grounds entirely. The major
differences among common-law systems appear in the legal treatment of the
economic consequences of divorce: most common-law countries follow the English
model that permits judges to use their own discretion in reallocating the
property and income of the spouses in the way that seems fair; a minority of
U.S. states adhere to the principle of equal rather than discretionary division
of assets.
Property and succession
The basic principles of property and succession are much the same everywhere,
but the newer countries have special laws on forests, mines, and water rights.
In Australia, for example, the crown reserves all mineral rights to itself. The
transfer of land in England is governed by a system of title registration. In
Canada and the United States the separate deeds are recorded, and title
insurance is widely used to protect the purchaser.
Succession on intestacy is broadly similar throughout common-law countries but
varies everywhere in detail. The widow, for example, may get more in one
country and the children more in another. All children of both sexes generally
take equal shares. In regard to testate succession, nearly all U.S. states
protect the surviving spouse against disinheritance by securing to him or her a
fixed indefeasible share of the decedent's estate. In England, and most of the
former Commonwealth countries, however, not only the spouse but also children
and certain other dependents of the deceased are permitted to petition the
court for discretionary financial provision out of an estate if, in the
judgment of the court, the testator did not make reasonable provision for them.
In most U.S. states and some Canadian provinces there are homestead laws, which
protect the family house or a certain minimum sum of money from the claims of
creditors.
Tort law
Tort law (i.e., the law relating to private civil wrongs) is largely common law
in England, Canada, and the United States. Several major reforms have been
introduced along the same lines in different countries. Allowing claims by
dependents of persons tortiously killed and removing the immunity of the crown
or government or charitable institutions from tort claims provide examples. The
liability of manufacturers to the ultimate consumer was first laid down by U.S.
and then by English judges.
In the field of libel, U.S. practice is less strict than the English, and in the
United States a public figure cannot sue for honest but unfair and untrue
criticisms of his activities, whereas in England published facts must be true
and comment fair. In some Australian states truth is not necessarily a defense
to an action.
A notable U.S. tort is interference with privacy, examples being a stranger
using one's photograph for advertising without permission, using “bugging”
(i.e., electronic eavesdropping devices) in one's home or searching it, or
taking photographs of persons in embarrassing situations.
Contracts
Contract law is basically similar in the common-law countries. The most
interesting difference relates to the question of enforcement of contracts by
third parties who are not actually parties to the contract but who are persons
for whose benefit the contract was made. English law excludes such rights,
except in an occasional statute. The Indian Contract Code of 1872 generally
allows it, as does U.S. state law.
English law still requires the use of a seal on a gratuitous contract (such as
one agreeing to make a gift) but has largely repealed the laws requiring
written evidence of ordinary contracts. Written evidence is often called for in
the United States.
The various areas of special contracts, such as those applying to employment,
sale of land, and agency, are broadly similar everywhere but are regulated by
local legislation and by a wealth of labour legislation.
Criminal law and procedure
As regards criminal law and procedure, the substance of the law is much the same
throughout the common-law countries. More important differences appear in the
rules of criminal procedure. This rests in England on modern legislation,
whereas the old procedure bore heavily on the accused. Accused persons may now
testify at the trial or not, as they wish; they are entitled to legal counsel;
and they are assisted out of public funds when they are accused of serious
crimes and are unable to afford to pay the costs themselves.
Canada has a Dominion Criminal Code, which covers major crimes. It also has a
Canadian Bill of Rights and provincial laws such as the Ontario Human Rights
Code. India has an overriding Bill of Rights.
Developments in the United States are the most interesting. Criminal procedure
has become a constitutional matter, with a kind of federal common law of
criminal procedure overriding state law in many instances. Thus, “due process
of law” under the Fourteenth Amendment to the federal Constitution and the
Federal Rules of Criminal Procedure confer wide protection on accused
persons—too wide, some think, for public safety.
English courts are reluctant to admit tape recordings unless supported by
direct evidence of persons present, and this is generally the position taken in
the United States, although, with the permission of a court, emergency
wiretapping is permitted. English and U.S. law exclude confessions unless they
are made freely and spontaneously. If evidence is found by unlawful means, such
as by searching a house without a warrant, English law permits such evidence to
be used, but U.S. law does not.
The main difference between English and U.S. safeguards is that English
protections rest on statute or case law and may be changed by ordinary statute,
whereas U.S. safeguards are constitutional and cannot be relaxed unless the
Supreme Court later reverses its interpretation or the Constitution is amended.
The future of the common law
In the past the law performed the function of a referee in a free economy and
was called in to apply generally accepted ideas of right and wrong to
individual disputes. Today, law often forms an instrument of governmental
policy or results from social pressures on the government. Law, therefore, is
increasingly administrative.
Another tendency, and one that is likely to be reinforced, is an increasing
reliance on statute law and codification as instruments of legal development.
At one time the English Law Commission considered drafting a contract code, and
the law of tort has been the subject of several statutes. When Britain entered
the European Economic Community it was thought that there might be pressures to
make English law more accessible by codifying it along the lines of the
continental model. Harmonization of the laws of the member states, however, has
not thus far required this. In the United States the legal sovereignty of the
states impedes such a radical change, but uniform state laws are becoming more
common.
In view of the general tendency in modern society of shielding the individual
as fully as possible from the consequences of chance accidents, the judge-made
law of tort may in time be replaced, as it has been in New Zealand, by a
comprehensive system of official or private insurance, similar to the present
compulsory third-party risk insurance available for motor vehicles. Public law
is also gaining on private law in other fields—in real-property development,
for example, public zoning or town-planning rules are already more important
than the traditional restrictions imposed by individual neighbouring
landowners. In family law, public-welfare laws on child care and adoption,
pensions, and social security are often more important than the older private
law based on the rights of spouses and children.
Additional reading
A.K.R. Kiralfy, The English Legal System, 7th ed. (1984); and Philip S. James,
Introduction to English Law, 11th ed. (1985), are general outlines. There are
numerous general historical works, such as Edward Jenks, A Short History of
English Law: From the Earliest Times to the End of the Year 1939, 6th ed. (1949);
A.K.R. Kiralfy, Potter's Historical Introduction to English Law and Its
Institutions, 4th ed. (1958); Theodore F.T. Plucknett, A Concise History of the
Common Law, 5th ed. (1956); J.H. Baker, An Introduction to English Legal
History, 2nd ed. (1979); and S.F.C. Milsom, Historical Foundations of the
Common Law, 2nd ed. (1981), a difficult but classic text.For the United States,
see E. Allan Farnsworth, An Introduction to the Legal System of the United
States, 2nd ed. (1983), a broad study of the American legal system. A good
historical treatment is Lawrence M. Friedman, A History of American Law, 2nd
ed. (1985).General studies of other common-law nations include G.W. Paton
(ed.), The Commonwealth of Australia: The Development of Its Laws and
Constitution (1952); Bora Laskin, The British Tradition in Canadian Law (1969);
E. McWhinney (ed.), Canadian Jurisprudence: The Civil Law and Common Law in
Canada (1958); and M.C. Setalvad, The Common Law in India, 2nd ed. (1970).
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