English Common Law

English common law was more diffuse in its historical origins and in its application than was the civil law. Rome for three and a half centuries ( A.D. 43-407) ruled England, but that occupation left few legal marks. More important was the later migration by, among others, the Angles and the Saxons from the European continent. They laid down a body of law based largely on custom, practice, and folkways, although it was partly codified. Unlike Roman civil law, which had the administration of an extended empire as a principal objective, the Anglo-Saxon laws reflected the diversity and diffusion of interests within England after the end of Roman occupation.

A two-tiered legal system grew from this early experience. The first level sup

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ported the powerful centralizing system of feudalism introduced in 1066 by William the Conqueror and his successors. The common law was "common" because it spread throughout England, not because it served the lower social orders. To the contrary, William intended the common law to apply only to the aristocratic tip of highly stratified English society. Over the course of several centuries, the common law system matured into a complex body of rules that only trained lawyers and judges fully comprehended, and then only after long, arduous study.

The common law also functioned on a second, local level. Its Anglo-Saxon inheritance gave it a customary quality; that is, it rested on long-established practices of the community. Legislation, which was so important to the civil law, played a relatively insignificant role in the development of the common law until the mid- nineteenth century. Even the high common law developed from customary practices accepted by the royal courts. Custom also held sway on the local level--in the counties, manors, and boroughs--where royal law did not regularly intervene in the day-to- day lives of the people until the beginning of the seventeenth century. Thus, the common law developed in the royal courts had a meaning larger than just the technical rules of pleading; it was also the customary practices associated with the conduct of local affairs.

At both the royal and the local level, the English evolved rules and procedures that laid the foundation for American law. Between 1066 and the abolition of feudalism in 1660, the English courts formulated the law of real property, of obligations and duties in society, and of criminal justice. After settlement of the American colonies in the early seventeenth century, English law remained the source of authority, and this transatlantic connection persisted even after the colonies achieved independence.

Through the organizational legacy of the feudal state Englishmen also gradually evolved the rudiments of constitutionalism. With constitutionalism government is limited in its powers and is based on the existence of certain overarching principles. The nobility was acutely aware of its rights and liberties, and it sought to protect them against the growing strength of the Crown. When civil war broke out against King John ( 1199-1216), the nobility attempted to limit the king's prerogatives through the famous Magna Carta, or Great Charter. This historic document, which was not a constitution in the way we would think of one today, was forced on the king by his rebellious vassals. In it he pledged to respect their traditional rights. It was neither a bill of rights nor a charter of liberty; it was simply a feudal contract. It had no application to the general public, and it was revised three times over the next twenty years. It only became a permanent part of the law in England in 1225. Still, Magna Carta was a turning point in the constitutional history of England and later a source of reference for English settlers in North America. Certain of its key provisions, notably those dealing with matters of criminal justice, were later included in the Bill of Rights to the American Constitution.

The Magna Carta was only one phase of the more than five-hundred-year struggle between the Crown and the nobility, or between the king and Parliament, over the basis of sovereign authority in the English government. Equally important were questions about the relationship of government to the people, the proper balance among the various branches of government, and the role of government in promoting both the public good and private interest. Unlike the Americans the English never developed a written constitution to deal with these questions. Instead, they relied on the customs

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and practices of the common law and on a handful of documents, including Magna Carta, to establish their unwritten constitution.

The origins of public and private law in the United States flowed from a multiform and dynamic common law tradition. The evolution of England from a feudal society with a subsistence-agricultural economy to a commercial or mercantile-oriented economy contributed mightily to the legal tradition that the English settlers brought with them. North America never experienced a feudal regime, but the origins of its legal structure, substance, and culture were inextricably linked, even in today's world, to the form and content of the common law as it evolved from the eleventh through the seventeenth centuries.

Date: 2015-01-29; view: 822