Common Law: Origin and Development in the Middle Age

Foreword

The exploration of the rise of common law in England up to the 16th century offers a deep dive into the formation of the legal system that would come to dominate English jurisprudence. This article traces the development of legal practices from the feudal land tenure system, in which land ownership underpinned both economic and political power, towards centralization of judicial authority under the Norman kings. The early establishment of royal courts, which sought to impose uniform legal principles across the realm, played a central role in shaping the consistency of common law, often overriding local customs in favor of a standardized legal framework. This period also heralded significant legislative reforms under Edward I, whose statutes laid the groundwork for modern property and criminal law, further cementing the role of common law in English society.

As the common law system evolved, it became clear that its rigid application could sometimes result in injustices, which prompted the development of equity law. The establishment of the Court of Chancery, led by the lord chancellor, provided a necessary counterbalance, addressing cases where the strict rules of common law fell short. This period also witnessed the professionalization of the legal system, with the creation of the Inns of Court and the compilation of the Year Books, which documented legal arguments and decisions, thereby contributing to the formalization of legal education and the practice of law.

The rise of prerogative courts in the late 15th century, marked another significant shift, as a reflection of broader European trends towards bureaucratic and written legal processes. These courts offered alternative legal remedies, although their later use for political repression under the Stuart monarchy led to their eventual decline. This article provides a comprehensive overview of these developments, illustrating how the interplay between common law, equity, and prerogative courts laid the foundation for the English legal system as it entered the modern era.

Origins of Common Law

The seeds of the common law system seeds have been sown during the early medieval period in England, specifically within the King’s Court (Curia Regis) established near London in Westminster. Initially, this legal framework did not focus on establishing substantive rights; rather, it revolved around procedural remedies. Over time the consistent application and refinement of these procedures gave rise to the modern understanding of legal rights as primary, with procedures serving as the means to uphold them. Notably, the evolution of English common law was driven predominantly by judicial rulings rather than legislative actions up until the late 19th century.

Figure 1: Alfred the Great. 878

The development of English common law gained momentum following the Norman Conquest of 1066, though its foundations were laid during the Anglo-Saxon era, particularly after Alfred the Great's reign beginning in 871. During this period, local customs and the influence of the Church played crucial roles in governance, with crimes being perceived more as private wrongs requiring compensation to the victim than as offenses against the State. The arrival of the Normans did not immediately dismantle the existing Anglo-Saxon legal framework; however, it did introduce significant changes over time. Land distribution among the king's feudal vassals became a norm, altering the landscape of English society and law. Grave offenses transitioned from personal disputes to public crimes, with severe punishments such as death and forfeiture of property becoming common.

The presentment of Englishry, a practice requiring local communities to identify sudden death victims as English or face fines, highlighted the tensions between the Norman rulers and their English subjects. This period involved the centralization of governance, the rise of a bureaucratic system, and the introduction of written records, laying the groundwork for a more unified legal system. The extent to which the effectiveness of the Anglo-Norman administration was rooted in Anglo-Saxon legacies or Norman innovation remains debated. Nonetheless, several elements from the Anglo-Saxon legal tradition persisted, such as the jury system, trial by ordeal, outlawry, and the issuance of writs, which played a crucial role in the transformation of a centralized judiciary.

Under Henry II’s reign (1154–89), significant legal consolidation took place, with royal officials traveling across the country to oversee justice administration. The separation of Church and State fostered distinct legal systems and courts, igniting long-standing jurisdictional conflicts, particularly as Church court appeals could be taken to Rome before the Reformation. Despite the Normans' French heritage and their customary legal practices, they did not simply impose Norman customs onto England. Instead, a unique legal system evolved, shaped by local circumstances. Although some clergy were knowledgeable in Roman and canon law, these influences were less pronounced in England than elsewhere in Europe due in large part to the already sophisticated Anglo-Norman legal framework.

Figure 2: Henry II, King of France, 1559

Feudal Land Tenure in Medieval England

During the formative years of the common law system, England's economy was predominantly agrarian, with land serving as the primary source of wealth and political influence. Agriculture formed the backbone of society, and landownership was central to power structures, particularly in rural areas. Monetary transactions played a significant role primarily in urban centers such as London, Norwich, and Bristol, where commerce thrived.

Land ownership was structured within a feudal hierarchy. The king held ultimate authority, with aristocratic "tenants in chief" directly beneath him. Directly below them were the "mesne" tenants, intermediaries who managed land on behalf of the tenants in chief. At the bottom of this chain were the tenants in demesne, who actually lived on and worked the land. Each tier of this structure was bound by specific tenurial conditions, involving either service or financial obligations to the superior tenant. For instance, a tenant might be required to supply a knight for military service for a designated period each year.

Over time, such services were often replaced by fixed monetary payments, which, due to inflation, lost much of their initial value. However, "incidents," or rights contingent upon certain events, remained significant, as they were adjusted to reflect the current value of the land. For example, a feudal lord could claim a tenant’s land if the tenant died without heirs, or demand compensation for assuming wardship or granting permission for the heir’s marriage. The system of land tenure was defined by various "estates," which determined the duration and nature of the tenant's interest in the land. Land held in "fee simple" allowed inheritance by any heir, while "fee tail" restricted inheritance to direct descendants.

Figure 3: Farming in Early Medieval England

Life estates, lasting only for an individual's lifetime, were also common. Transfer of land ownership was conducted through public rituals rather than written deeds, ensuring transparency and acknowledgment of such transactions. The rules governing land tenure were initially developed in local lord's courts, although the emergence of more effective legal remedies in the King’s Court during the late 12th century led to their standardization, which marked the true beginning of the common law.

The rapid changes in the 13th century necessitated legislative intervention to address specific issues. For example, life tenants were prohibited from using land in any manner that would damage or devalue it unless explicitly permitted. Similarly, tenants in tail were required to adhere to the established system of inheritance. The law surrounding land, the subject of much litigation, was among the first to develop a comprehensive set of substantive rules, which were encapsulated in Sir Thomas Littleton's Tenures, the earliest textbook of English law, published in 1481. Primogeniture, the right of the eldest son to inherit the entire estate, became a defining feature of the common law, initially intended for knight-service tenures but later applied more broadly, in contrast to the more equitable inheritance practices common in other European countries.

The Influential Legislation of Edward I

Edward I, who ruled England from 1272 to 1307, is often compared to Justinian for his transformative contributions to the legal framework of medieval England. His legislative efforts profoundly influenced the development of English law, with his civil enactments serving as cornerstones for statute law for many centuries. Edward’s reign was marked by a series of critical legal reforms that not only amended the unwritten common law but also addressed various social and economic issues of his time through a comprehensive body of legislation.

Figure 4: Edward I 'Longshanks' and The English Parliament

One of the most significant of these reforms was the first Statute of Westminster in 1275. This statute was groundbreaking in that it made jury trials compulsory in criminal cases, thereby standardizing and formalizing the process of criminal justice across the kingdom. It also introduced significant changes to land law, ensuring that land tenure and ownership were more systematically regulated, which had long-term effects on the stability and clarity of property rights in England.

The Statute of Gloucester, enacted in 1278, played a crucial role in curbing the powers of local courts, which had previously operated with considerable autonomy. By limiting their jurisdiction, Edward centralized judicial authority, thereby enhancing the consistency and fairness of legal proceedings across the country. This statute also expanded the scope of actions for damages, providing citizens with broader avenues for legal redress in civil matters.

The second Statute of Westminster in 1285 was one of Edward’s most comprehensive pieces of legislation, introducing four major reforms. First, it confirmed the estate tail in land, a provision that was often linked to maintaining the titles of honor and the inheritance of landed estates within noble families. Second, it made land a viable asset for the payment of judgment debts, thereby integrating land more fully into the economic and legal fabric of the country. Third, it liberalized the process of appealing to higher courts, thus ensuring that justice was accessible even in cases where local courts failed to deliver fair judgments. Finally, it improved the laws governing the administration of assets upon death, providing clearer guidelines for the distribution of estates.

Figure 5: Edward I (right) giving homage to Philip IV of France

The 1290 statute, commonly referred to by its opening words, Quia emptores terrarum ("because sellers of lands"), was another landmark in Edward’s legal reforms. This statute barred the granting of new feudal rights by anyone other than the crown, effectively ending the practice of subinfeudation and making land held in fee simple more freely transferable. This was a significant step toward the modernization of property law, as it ensured that land could be bought and sold without the cumbersome interference of feudal obligations, thus facilitating the growth of a more dynamic land market.

In modern legal interpretations, the statutes issued before 1285 are sometimes regarded as extensions or restatements of common law rather than as wholly new statutory laws. These laws generally sought to clarify or provide detailed expressions of existing legal principles without fundamentally altering them. During this period, there was ongoing debate over whether governments had the right to change long-standing customs, reflecting the tension between traditional practices and the need for legal reform.

Evolution of Chancery and Equity Law

The development of chancery and equity in English law emerged as a response to the limitations and rigidity of common law. While legal rules are indispensable, it is inevitable that they will not be able to anticipate every potential situation that may arise, which would lead to situations where their strictly application resulted in unfair outcomes. In order to address these potential injustices, the concept of equity, which is rooted in principles of fairness and conscience, evolved as a complementary system to common law. Although the idea of equity had existed since the inception of the common law, it gained prominence in the 14th century as the legal system became more rigid and formalized. At this point, the need for a mechanism to correct the shortcomings of common law became evident.

Figure 6: Richard II

Initially, Edward I through his royal council, had the authority to provide relief in cases where the application of common law was insufficient. Over time, the lord chancellor, often a prominent bishop, assumed the role of adjudicating these petitions for justice. By the reign of Richard II, the chancellor’s jurisdiction had solidified into the Court of Chancery, which was tasked with administering equity. The Court of Chancery not only addressed procedural issues and delays but also gradually asserted the power to modify the strict rules of common law to prevent injustices.

The chancellor's decisions were based on the specific circumstances of each case, with common grounds for relief included fraud, breach of trust, and unjust retention of property. This flexible approach allowed the chancellor to provide remedies that common law could not offer. The process began with the submission of a bill in the vernacular by the plaintiff, after which the defendant was summoned for personal questioning. A system of written pleadings was established, allowing the defendant the opportunity to respond to the charges. In the event of a refusal to comply, the defendant may face imprisonment. Thus, equity evolved as a vital aspect of English law, ensuring that justice was served when the common law fell short.

Legal Education and Case Law

During the reign of Edward I, the role of the judge transitioned from a clerical function to a dedicated legal profession. The qualification to practice as a barrister became contingent upon an applicant's legal knowledge, marking the beginning of law as a professional career, this led to the need for permanent institutions and formalized legal education. As the profession expanded, seasoned barristers were promoted to the esteemed rank of "serjeant at law" and subsequently, formed associations with judges, who were selected from among their peers, at Serjeant's Inns in London. These inns served as informal forums for discussing complex legal issues and offered guidance on decisions in both actual and potential cases.

Figure 7: Richard II meeting with the rebels of the Peasants' Revolt of 1381.

The four Inns of Court, Gray’s Inn, Lincoln’s Inn, Inner Temple, and Middle Temple, originated from the residential halls of junior barristers. Over time, these Inns gained official recognition as the authorities responsible for admitting individuals to the bar. Legal education during this period primarily involved court attendance, participation in mock legal disputes, and attendance at lectures (readings) conducted by senior legal practitioners.

Henry of Bracton (c. 1210 – c. 1268), was a distinguished English cleric and jurist, renowned for his significant contributions to legal scholarship, particularly for his seminal work De legibus et consuetudinibus Angliae ("On the Laws and Customs of England"). Initially, Bracton’s work served as a study tool for law students, but it quickly became obsolete. Consequently, law students were compelled to take notes during court proceedings to stay current with evolving legal practices. The quality of these notes varied significantly, depending on the skill and consistency of the note-taker. Around 1280, these notes were first copied and circulated, they were subsequently printed and organized by regnal year in the 16th century, becoming known as The Year Books.

The Year Books, which were written in an abbreviated form of French law, often lacked clarity in distinguishing between judges and barristers. Instead, they focused on the arguments presented in court. Although, previous decisions were not binding, they were heavily referenced by judges and barristers in preparing cases, establishing case law as the foundation of English common law. The dynastic Wars of the Roses in the late 15th century disrupted the legal order, as powerful aristocrats and influential commercial families manipulated legal proceedings, often evading the reach of the royal writ through intimidation and corruption of the justice system.

Figure 8: Bracton de H., the Year Books

Growth of English Prerogative Courts

The expansion of prerogative courts under the reign of Henry VII marked a significant development in the English legal system, diverging from the established common-law framework. These courts, which operated outside the traditional common-law system, were aligned to the royal executive power, reflecting broader European trends influenced by Renaissance thinking, which favored written bureaucratic processes over customary oral proceedings. Among these courts were the Council of the North and the Council of Wales and the Marches, both established by statutes in the 16th century. Additionally established was the Court of Requests, which handled minor civil cases, particularly those involving indigent parties, offering a less expensive and more affordable alternative to common-law procedures. The Court of Star Chamber, initially believed to have gained authority through a statute of 1487. However, evidence suggests that is evolved from the royal council and gained prominence in the early 16th century.

It became known for handling sophisticated crimes such as forgery, perjury, and conspiracy, imposing fines and imprisonment as punishments. While common-law courts dealt with severe offenses like murder and robbery, the Star Chamber focused on more complex matters. However, its reputation deteriorated as the early Stuart kings used it to suppress political dissent, which resulted to its abolition in 1641. Its jurisdiction was subsequently absorbed by the common-law courts by 1660.

Figure 9: Henry VII Tudor

The High Court of Admiralty, another prerogative court, developed in the 14th century under royal authority and it initially focused on maritime cases. Despite a statute in 1391 limiting its jurisdiction to matters at sea, it expanded its commercial jurisdiction during the Tudor and early Stuart periods. Although restricted to maritime disputes following the English Civil Wars, the Admiralty Court still reflected the broader trend of consolidating legal authority within the common-law courts.

These prerogative courts, while initially filling gaps left by the common law, eventually encountered resistance due to their association with royal power and repression. This resulted in their decline and the reassertion of common-law dominance in the English legal system.

Conclusion

The investigation into the rise of common law up to the 1500s underscores the foundational role that this legal tradition played in shaping the English judiciary and broader legal practices. The transition from a feudal system, deeply rooted in land ownership and hierarchical obligations, to a more centralized and standardized legal framework reflects the dynamic change of English law during this period. The establishment of royal courts, which sought to unify legal principles across the kingdom, laid the groundwork for the common law's dominance, promoting consistency and reducing the influence of local customs that had previously governed much of the legal landscape.

Edward I’s legislative reforms were critical in consolidating this legal centralization, as his statutes addressed key issues in land law and criminal justice, creating a more uniform legal system. However, the rigidity of common law necessitated the development of equity as a complementary system to address cases where strict legal rules could lead to unfair outcomes. The establishment of the Court of Chancery constituted a means to ensure that justice could be administered with a focus on fairness, even when the common law was inadequate.

The professionalization of the legal system, marked by the rise of the Inns of Court and the compilation of the Year Books, further solidified the role of law as a distinct and respected profession. These institutions played a fundamental role in educating future legal practitioners and in the maintenance of the continuity and expansion of legal principles.

Finally, the rise and fall of prerogative courts, such as the Star Chamber, illustrate the ongoing tension between established legal traditions and the evolving needs of governance, particularly during times of political upheaval. Although these courts initially provided more accessible and flexible legal remedies, their eventual association with political repression led to their decline, thereby reinforcing the supremacy of the common law.

In conclusion, the development of common law, equity, and the professional legal system during this formative period established the groundwork upon which modern English law would be built, influencing not only the legal system in England but also many other legal traditions around the world.

Bibliographic References

Baker, J. H. (2002). An introduction to English legal history (4th ed.). Oxford University Press.

Bracton, H. de. (1968). On the laws and customs of England (S. E. Thorne, Trans.). Harvard University Press. (Original work published ca. 1235).

Cheney, C. R. (1981). The English church and its laws, 12th-14th centuries. Variorum Reprints.

Harding, A. (2001). Medieval law and the foundations of the state. Oxford University Press.

Hudson, J. (1996). The formation of the English common law: Law and society in England from the Norman Conquest to Magna Carta. Longman.

Milsom, S. F. C. (1969). Historical foundations of the common law. Butterworths.

Pollock, F., & Maitland, F. W. (1895). The history of English law before the time of Edward I (Vol. 1 & 2). Cambridge University Press.

Turner, R. V. (2003). The king and his courts: The role of John and Henry III in the development of justice in thirteenth-century England. Cornell University Press.

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