Common Law: Evolution from the Medieval Era to the 20th Century

Foreword

This article delves into the profound transformation of common law from the medieval period through the 20th century, illustrating how legal systems evolved across Europe and Britain. The 16th century heralded a pivotal era of legal reform with significant shifts toward written procedures and the gradual abandonment of archaic Roman and Germanic traditions. This period marked the rise of universities and legally trained professionals, thereby reinforcing the influence of Roman and canon law in England, despite the entrenched customary law practiced at Westminster. The introduction of written pleadings and the establishment of prerogative courts, such as the Court of Chancery, reflected a broader European trend toward modernization.

Notable figures such as Sir Edward Coke played a pivotal role in the evolution of the English legal tradition during the Tudor-Stuart period. The Tudor and Stuart periods also witnessed significant legislative developments, with statutes which consign various economic, political, and social issues.

The evolution of equity law, particularly through the chancery courts, provided further evidence of the adaptability of English law. Equity constituted a flexible legal framework that complemented the rigidity of common law, offering remedies based on fairness and justice. The consolidation of law and equity, most notably under the Judicature Acts of 1873–75, marked a significant milestone in the development of the British legal system, guaranteeing the accessibility of both legal and equitable remedies were available across the High Court divisions.

The modernization of common law in Great Britain, heavily influenced by thinkers like Jeremy Bentham and Sir William Blackstone, laid the foundation for the contemporary legal landscape. Bentham’s utilitarian philosophy and Blackstone’s systematic approach to legal education contributed to the reform and dissemination of common law principles, both in Britain and abroad. The gradual integration of legal and equitable remedies, alongside the codification of criminal and civil procedures, reflects the dynamic and evolving nature of the British legal system, which continues to adapt to the changing needs of society.

Sixteenth-Century Legal Transformations in Europe

The 16th century marked a significant period of transformation in European legal systems, characterized by a shift towards improved legal processes. This era saw a deliberate move from the reliance on antiquated Roman models and local Germanic traditions, with a notable emphasis towards written procedures over oral ones. Consequently, universities and legally educated professionals gained prominence. In England, although the entrenched customary law practiced by the central courts at Westminster remained robust, the evolution of written pleadings and the introduction of more expedient remedies ushered in substantial changes. Prerogative courts, including the Court of Chancery, vied with common-law courts for jurisdiction over cases, adopting written procedures inspired by Continental practices. Roman and canon law were integral to the curricula at Oxford and Cambridge, to shape the education of legal practitioners in these courts.

Figure 1: Portrait of Cardinal Wolsey. 1473-1530.

Cardinal Thomas Wolsey, who lost favor in 1529, faced accusations of intending to introduce Roman law into England. His appointment of clergy to the Council of the North and as justices of the peace contributed to the proliferation of these suspicions. The legal historian Frederic William Maitland in his work English Law and the Renaissance (1901), explored this legal crisis, attributing the endurance of common law partly to the practical training offered by the Inns of Court. In contrast to the theoretical approach of Roman law, English law was rooted in detailed judicial decisions on specific legal issues arising in practice.

However, the influence of Roman law on English law was likely more substantial than commonly acknowledged. Legal actions such as trespass and disseisin had parallels in Roman law, as did the liabilities of those in common callings like innkeepers and carriers of goods. Equitable remedies like injunctions, the law of redemption of mortgages, and the legal concepts of trusts and deceit had similarities with canon law and church court practices. Moreover, elements of Continental mercantile law, which included Roman-law principles, were integrated into English law, influencing rules on contracts and negligence. It is noteworthy that a considerable number of these European legal concepts persisted for a longer period in England, where they avoided codification, compared to the situation on the Continent.

Sir Edward Coke's Influence on Common Law

The development of common law during the Tudor-Stuart period would be incomplete without the contributions of Sir Edward Coke. As both a prominent barrister and a judge, Coke played a significant role in the development of the English legal tradition through his extensive legal writings and his firm defense of common law against royal overreach. In 1606, Coke faced the risk of losing his position as chief justice when he opposed the royalist party's claims to prerogative powers that operated outside the boundaries of common law. He strongly objected to the practice of legislating by proclamation, the granting of dispensations from the law on a case-by-case basis, and the expanding authority of prerogative courts. His involvement in the draft of the Petition of Right in 1628 further demonstrated his commitment to curbing the misuse of power.

Figure 2: Sir Edward Coke

Coke's legal contributions were solidified through his extensive works, which include his 11 volumes set of Reports, published between 1600 and 1615, with two additional volumes released posthumously. Although Coke's Reports were more commentary than mere case reports, he meticulously included copies of the court records for each case. For many years, these reports served as the primary source for citing legal cases, as they were the sole formal compendium of case law available at the time.

Coke's four volumes of Institutes of the Lawes of England, published between 1628 and 1644, covered a wide range of legal topics, including real property law (commonly referred to as Coke on Littleton), medieval statutes, criminal law (Pleas of the crown), and court jurisdiction. Although Coke was not an impartial historian, often openly advocating for the common law, his writings successfully restated and perpetuated the common law in a form that was widely embraced. Despite his occasional missteps and traditionalist perspectives, Coke's contributions were instrumental to ensure the sustained relevance and development of common law during a period of significant legal and political change.

Expansion of Tudor and Stuart Statutes

During the Tudor period, the monarchy leveraged proclamations to implement emergency actions, regulate economic activities, and grant charters to trading companies. Parliament, on the other hand, enacted politically motivated laws, such as those affirming the king's authority over the newly formed Church of England. Additionally, statutes were enacted to manage imports and exports, regulate agriculture, and curb unfair competition. The law of 1562–63, for instance, set out to regulate apprenticeships and mandated annual wage setting by magistrates, based on living costs.

Figure 3: James I (r. 1603-1625)

Several statutory innovations emerged during this era. The Statute of Monopolies of 1623 under King James I affirmed that monopolies were generally against common law, though it carved out exceptions for patentable inventions. Another significant statute from 1601 laid the foundation for the privileges associated with charitable trusts. Furthermore, a series of Poor Laws enacted in the late 16th century addressed the issue of poverty that had been exacerbated by the dissolution of the monasteries.

In 1540, legal actions aimed at reclaiming land were subjected to time limitations. The principle of limiting actions based on the passage of time was later extended to the law of contract and tort in 1623–24. Despite the drafting of numerous reform proposals during the Commonwealth period (1649–60), which anticipated the reforms of the 19th century, none were implemented. These proposals included offering legal counsel to prisoners, modernizing land laws and legal procedures, and allowing civil marriages.

The Statute of Frauds of 1677, passed during the reign of Charles II, represents the most significant legislative achievement of the later Stuart period.  In response to the  increase in literacy and the widespread issues of perjury and fraud, this statue required that wills and contracts for the sale of land or goods above a specified value be in writing. Although crafted by distinguished judges, the statute necessitated extensive interpretation in subsequent legal practice.

Figure 4: Charles II (r. 1660-1685)

Evolution and Formalization of Equity Law

The consolidation of equity law, despite early skepticism from observers like John Selden, gradually took shape as the types of cases eligible for equitable relief became more defined. Over time, the chancery began to adhere to precedents, and legal reports of equity decisions were published, contributing to the systematization of equity.

In 1615, King James I affirmed the chancery's traditional authority over common-law courts, yet he limited its superior status to those areas where its jurisdiction was well-established. If there was uncertainty about the application of equity, the common law was to prevail.

This period saw significant advancements in the law of trusts, particularly in property law. By the 14th century, most land in medieval England was held "to uses," where nominees held land on behalf of the true owners. This arrangement, partly designed to avoid feudal taxes, also allowed for the transfer of land through wills. Feudal duties, or "death duties", could be circumvented by transferring land to another person before death, as wills of land were not generally permitted before 1540. The use of land could be assigned to another individual during the owner's lifetime, with the transferee required to follow the owner’s instructions regarding the land. The beneficiary typically remained on the land as the apparent owner, while the trustee held the legal title. Since common-law courts recognized only the trustee as the owner, beneficiaries had to seek redress in chancery to enforce their rights.

A statute, passed during the reign of Richard III, allowed beneficiaries to transfer property directly, and the 1536 Statute of Uses, under Henry VIII sought to maximize crown revenue from feudal taxes by vesting legal title in the beneficiary, making them liable for feudal dues. Although the creation of old-style uses was restricted for a time, these uses re-emerged in the late 16th century as modern trusts in chancery. This legal innovation was particularly useful for protecting the interests of young or inexperienced beneficiaries and was eventually extended to various other purposes, including the management of property for clubs, unincorporated bodies, and churches.

Figure 5: Henry VIII seated in Parliament, The Wriothesley Garter Book, c.1535

William Blackstone's Enduring Impact on Common Law

The modernization of common law in Great Britain owes much to the profound influence of Sir William Blackstone, whose contributions shaped the understanding and application of English law, both domestically and abroad. Born in 1723, Blackstone began his legal career by entering the bar in 1746, and his appointment in 1758 as the first lecturer on English law at an English university marked the beginning of his enduring legacy.

Blackstone's most significant work, Commentaries on the Laws of England, was published in four volumes between 1765 and 1769. These texts systematically organized the existing legal knowledge of the time into a coherent and accessible form. The first volume, Of the Rights of Persons, addressed family and public law, laying the foundation for understanding the legal status and obligations of individuals. The second volume, Of the Rights of Things, provided a comprehensive outline of real property law, a cornerstone of English legal tradition. The third volume, Of Private Wrongs, covered civil liability, the functioning of courts, and procedural law, offering insights into the mechanisms of justice. Finally, the fourth volume, Of Public Wrongs, delivered an insightful examination of criminal law, reflecting the legal principles governing public offenses.

Although Blackstone faced criticism for his lack of historical depth and scientific rigor, the clarity and accessibility of his writing ensured that the Commentaries were widely regarded as a definitive legal text. Despite these criticisms, his work's influence extended far beyond Great Britain, particularly in the United States, where it became the primary reference for English law after the American Declaration of Independence in 1776.

Figure 6: Sir William Blackstone

Blackstone's Commentaries not only served as a critical educational tool for lawyers but also shaped the legal landscape of the New World. The work's intelligibility and comprehensive nature made it an invaluable resource for both legal professionals and the general public, cementing Blackstone's place as one of the most influential figures in the history of common law. His legacy endures in the continued relevance of his work in legal education and practice, particularly in jurisdictions influenced by English common law.

Legal Reforms in Britain: Key Transformations

In the wake of the French Revolution’s social upheaval in 1789 and the economic disruptions of the Industrial Revolution, significant demands arose for comprehensive legal reforms aimed at modernizing the British legal system. Central to this movement was Jeremy Bentham, a distinguished English utilitarian philosopher, who advocated for profound and radical changes to the law. A brilliant academic, Bentham was disillusioned by the traditional depiction of the legal framework as presented in Sir William Blackstone’s lectures. In 1769, he entered the legal profession, but his financial independence, derived from an inheritance, allowed him to forgo active practice. Instead, Bentham dedicated himself to making the law more accessible and less technical for the general public, although his progress in writing and publishing was gradual.

His foundational work, An Introduction to the Principles of Morals and Legislation, was eventually published in 1789, marking a significant milestone in his efforts to reform the legal system.

Bentham vehemently criticized legal fictions and historical inconsistencies within the judiciary. He proposed two fundamental reforms: firstly, that legislation should be the responsibility of lawmakers rather than judges to achieve the greatest happiness for the greatest number; secondly, that the objectives of law should evolve in response to changing societal and temporal contexts. Principles of Morals and Legislation quickly gained widespread acclaim, effectively spreading Bentham’s utilitarian philosophy. His influence extended beyond Britain when he was granted French citizenship in 1792, and his ideas were respected across Europe and the United States. Although Bentham aspired to draft a comprehensive legal code for his own country or others, his practical impact was more indirect, primarily through the dissemination of utilitarian principles during the 19th century.

Figure 7: Jeremy Bentham

In England, significant reforms in procedural and criminal law emerged, beginning with the abolition of separate forms of action in civil cases in 1852, which were replaced by a unified system of writs of summons. This period also saw the liberalization of pleadings and the establishment of fixed trial dates. By 1933, jury trials in civil cases were largely discontinued, except in cases of defamation and a few other matters. Simplifications in civil proof were achieved through a series of evidence acts. At the turn of the millennium, substantial reforms in civil procedure were implemented based on Lord Woolf’s report, which focused on simplifying legal processes and modernizing legal language. This transformation included changing plaintiffs to claimants and replacing archaic terminology with plain English.

Criminal procedure in England has progressively enhanced the protection of defendants’ rights since the early 19th century. Key reforms included the right to counsel established in 1836, the ability to testify on one's own behalf from 1898, state-funded defense from 1903, and the right to appeal criminal convictions introduced in 1907. Throughout the 19th century, numerous statutes codified aspects of criminal law, particularly individual offenses excluding homicide. Notably, modern statutes began holding entities accountable without fault and allowing corporations to be liable for managerial actions.

The jurisdiction of church courts over laypeople ended in 1857 with the establishment of secular divorce and probate courts, which were later integrated into the High Court of Justice in 1875 under the Judicature Acts of 1873–75. These acts not only reorganized and renamed courts but also aimed to merge law and equity, ensuring that both legal and equitable remedies were available across High Court divisions. Despite these efforts, common law and equity retained distinct identities due to their differing subject matters and the persistence of legal professionals in maintaining the distinction. By the late 19th century, the central common law courts were consolidated into the Queen’s Bench Division, which continues to handle damage suits with single-judge trials post-1933. The chancery, as part of the High Court since 1875, managed equity cases alongside extensive property, bankruptcy, succession, copyright, patent, and taxation legislation, with contested probate matters transferred to chancery by the Courts Act of 1971. Concurrently, the Family Division was created to address matrimonial and child-related cases, further refining the modern legal landscape in Great Britain.

Conclusion

The historical development of common law, particularly from the medieval period through the 20th century, underscores the intricate interplay between tradition and reform in shaping the legal systems of Britain and beyond. This evolution was marked by a continuous tension between established practices and the need for modernization, reflecting broader social, political, and economic changes across Europe. The legal reforms initiated during the Tudor and Stuart periods, driven by figures like Sir Edward Coke, laid the foundations for a more structured and resilient legal system that could withstand the pressures of royal authority and political upheaval.

The consolidation of common law and equity, particularly through the chancery courts, signified a crucial step toward a more comprehensive and just legal framework. These developments were not merely about the creation of new laws but also about ensuring that the law could adapt to the complexities of an evolving society. The integration of legal and equitable remedies, alongside the procedural reforms of the 19th and early 20th centuries, demonstrated the flexibility and endurance of common law as a system capable of responding to changing circumstances while maintaining its core principles.

The influence of legal scholars like Jeremy Bentham and Sir William Blackstone further cemented the role of common law as a foundational legal tradition, not only in Britain but also in the emerging legal systems of the United States and other common law jurisdictions. Their contributions to legal theory and education helped to disseminate and preserve the principles of common law, ensuring its continued relevance in the face of modern challenges.

As we reflect on this article, it becomes clear that the evolution of common law was not a linear process but rather a dynamic interaction of legal ideas, social needs, and political forces. This journey from medieval customs to a sophisticated legal system underscores the adaptability of common law and its capacity to serve as a framework for justice in an ever-changing world. The enduring legacy of these developments continues to influence contemporary legal thought and practice, reminding us of the importance of balancing tradition with innovation in the pursuit of a fair and equitable legal system.

Bibliographic References

Bentham, J. (1789). An Introduction to the Principles of Morals and Legislation. London: T. Payne.

Blackstone, W. (1765-1769). Commentaries on the Laws of England (Vols. 1-4). Oxford: Clarendon Press.

Coke, E. (1600-1615). The Reports of Sir Edward Coke (Vols. 1-11). London: J. More.

Coke, E. (1628-1644). The Institutes of the Lawes of England (Vols. 1-4). London: W. Clarke and Sons.

Maitland, F. W. (1901). English Law and the Renaissance. Cambridge: Cambridge University Press.

Selden, J. (1615). The Historie of Tithes. London: J. Bill.

Woolf, H. (2000). Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales. London: Lord Chancellor's Department

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