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A History Of English Common Law

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The origin of English Common in the 12th century was sparked by the death of King Henry I in 1135. The nephew of Henry I was Stephen, and he was acknowledged to be the rightful king, but the magnates and such had sworn loyalty to Henry's daughter, Matilda. The entire reign of Stephen, which lasted from 1135 to 1154, was spent fighting with Matilda and her French husband. Upon Stephen's death the son of Matilda, Henry II, became king in 1154. It was from here on that the King started to take noticeable interest in the dealings of the court system, and put in to place a royal system instead of allowing the lords to deal with all matters in feudal courts.1 According to F. W. Maitland,

Ð'...The reign of Henry II is of supreme importance in the history of our law, and its importance is due to the action of the central power, to reforms ordained by the king. Ð'...He was forever busy with new devices for enforcing the law.

The term "common" is used because the laws established are just that, common to every jurisdiction and administered through a central court.2 When Innocent III ruled, the term was used in the church as well as in the royal courts to distinguish ordinary law from the law applicable to particular provincial churches.3 The term "common" also stems from the fact that the law was "characterized by processes of categorization and routinization, in particular the routine royal treatment of a wide range of cases."4

Arthur Hogue sums up the common law by using two opposite views. What the common law is not, and what it is. He says

The common law is not a written code. Ð'...the principles of common law have always eluded complete embodiment in any code or collection of writings. Judicial decision recorded on the plea rolls of the common-law courts, declaratory statures, and learned treatises on the common law may all express the principles of the common law, but these writings never comprise its totality.5

Another rule that does not apply to the common law is that the common law does not apply to a single group, for example the church. Therefore it is unlike the canon law. Third, the common law is not local custom for everyone, and it is not identified along with the rules of any of the local courts. Specialized rules are not part of common law. Rogue goes on to explain what the common law is by using five simple explanations. First, the common law is a "body of general rules" that apply universally throughout the realm. Second, royal courts enforce the laws. The treatise called Fleta states that "the Crown asserted a general responsibility for the judicial work of every secular court in the land." Third, the laws are made in reaction to actual legal controversies, as opposed to the whim of the lawmakers. Fourth, the jury selected becomes increasingly more knowledgeable about the facts and particulars of a certain case. Finally, the supremacy of law is very important to the tradition of common law. All subjects are held responsible for the laws decided, and are all subject to examination. These five principles of common law briefly explain what common law is.6

To differentiate between how the laws of England changed after King Henry II, a comparison of the court system can be used. Local, ecclesiastical, and borough courts decided cases in the old system of English law. Each of these courts could render very different decisions based on the same case and it was acceptable. The common law courts can be listed as Common Pleas, Seignorial courts, King's Bench, and Exchequer.7

The local courts, or courts of the counties, began to lose their importance as the royal courts, the Common Pleas, began to extend jurisdiction. The people of the area created the local courts; the royalty had nothing to do with it, so these new Common Pleas courts took away certain feelings of local pride. Therefore, these common courts were the most difficult to establish, and for many years many of the hundreds and such remained intact to protest the new rule. Local common law courts, referred to as shire courts or hundreds, had irregular schedules and meeting places. Sometimes the courts would meet outside, and other times they would meet in houses or monasteries. In to the thirteenth century, however, a schedule of meetings and meeting places had been established, making it easier to organize and hear pleas. These local courts heard claims that dealt with land, violence and theft, and some ecclesiastical cases.8

The hundreds dealt with and enforced a system of peacekeeping called frankpledge. This body of police consisted of about ten men who swore to be faithful to the king, and swore to bring wrongdoers to him so that they could be punished. The group was collectively known as a tithing. Once a boy reached the age of twelve, he was expected to swear and oath of loyalty and strive to belong to the tithing. Certain men were not included in frankpledge for various reasons. The inhabitants of the forest, clerics, and those under control of lords were not allowed to become part of the tithing. The tithing was a basic form of law enforcement that is similar to the system in modern England. The men are the police, guards, punishers, and examples for the entire area. When one does wrong, he is amerced, or forced to pay a fine or suffer a punishment. When someone who is not a part of the tithing commits a wrong, the entire community is amerced, so it is considered a good to the whole of the community if as many men as possible are allowed to be in tithing.9

The seigniorial courts were established for the Lords. The greater men were distinguished from the lower lords in all ways, including the judicial system. The honorial courts were not only a place for the lord's pleas to be heard, but were often used as a sort of advising time for the lords to meet and discuss issues with the vassals. The lords generally kept jurisdiction over their own households, but some sought to extend their personal jurisdiction to the actions of any man on their property. This type of jurisdiction was commonly referred to as "sake and soke." This type of jurisdiction is like that of the hundreds in most ways. Along with sake and soke comes the right of lords to exercise infangentheof, or execution. The hundred courts were not allowed this right.10

The King's Bench court generally deals with the placita coronae, or the pleas of the Crown, criminal cases, and appeals. The appellate branch of this jurisdiction was over the court of Common Pleas. These two courts exercised a joint jurisdiction over civil actions. The King had a choice to sit on the bench with the judges and make decisions, as he did occasionally, hence the term the King's Bench.11




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