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Early History of Common Law

Law cannot be fully understood without the knowledge of history. For instance, in Britain, the House of Lords is part of the legislature. It is also the highest court of appeal. Why should this be?

No one drafting a constitution today would choose to give the judicial power to the legislative. According to the doctrine of check and balance in the three branches of government, lawmakers should represent the people as a whole. It should not, like the House of Lords in U.K., consist of aristocrats and people appointed for life by the government. Judges should not be part to the legislature. If they are, they are not truly independent.

The House of Lords has this strange combination of powers because the modern House of Lords is the heir of the mediaeval noblemen. In the Fourteenth century these noblemen or peers obtained the right to be summoned to Parliament and to correct errors made by the ordinary courts of law. Their successors have kept these powers in a changed form, though they no longer reflect the balance of forces in Britain.

The historical explanation of the powers of the House of Lords helps to show how law evolves, or fails to evolve. A law for which there was originally a good reason can survive though the reason has vanished. Of course if laws are totally unsuited to new conditions they go under.

In western countries the laws that treated women as inferior to men in voting, holding public office, making family decisions, owning property and earning money have over the last century almost vanished. In China, the law concerning the private right in property has been modified again and again according to different ideologies. The knowledge of history can help us explain the illogic combination of the ownership in house and lease in land on which the house was built.

You are going to read a lot of common law cases, old or new, famous or ordinary. They are different from ours in terms of language and legal reasoning. Why are they so different and, to what extent, we can learn from them? Those fundamental questions have to be answered from the historic perspective.

The Roots of English law

Common law originated in English, an island not very far from the European continent. For a long time, one of the Celtic people inhabited the ancient Britain. Then, Roman army came and finally conquered England in A.D. 43. For the next three and half centuries Britain was under Roman rule. But Romans did little to spread their culture there. Around two-thirds of the people lived outside of the towns controlled by Roman generals, spoke no Latin and worshiped Celtic gods.

With the collapse of the great Roman Empire, its legions were withdrawn from Britain. Then came the greatest series of Anglo-Saxon invasions: Jutes and Angles from what is now Denmark and Saxons from northern Germany. The local Celtic population fled to the mountains of Scotland and Wales, so that Anglo-Saxon Stock now became the dominant ethnic Strain in England. But England was divided among Anglo-Saxon kings, and wars had continued among them for the next five hundred years.

Then, during the ninth century, Norsemen and Danes (Vikings) had raided England, struck in Scotland, and overran Ireland. The King of Wessex (a powerful Kingdom at that time) rallied England against the Viking attacks. In the next two centuries Vikings would continue to make their way to England, and there were more wars. The Vikings invasions have left definite traces in law. The very word 'law' is not English but Norse. The Danes independently developed a sort of grand jury and they had a tradition to form clubs and trade unions.

The king of Wessex remained the king of England, and it prospered for a while. But the Anglo-Saxons was poorly organized, their political backwardness contributing to military weakness. In January 1066, King Edward died. He was succeeded by the Earl of Wessex, Harold. This bothered a duke named William across the English Channel in Normandy. William was the cousin of the King Edward, and Edward had promised to make him the next king. William believed that he had a right to rule in England. These Norman aristocrats were descendants of Vikings who had settled in France, and they would try to solve their problem in the traditional way: conquest.

In October 1066, with 5000 Norman knights, William landed in England, near Hastings, and there his army met Harold's Anglo-Saxon army. Harold was killed in battle, leaving William as the most powerful force in England. Scotland, Ireland and North Wales to remain independent of English kings for generations to come.

The year 1066 is one of the watershed dates in legal history. The conquest of England by William set in motion the train of events, which eventually resulted in the creation and development of the distinctive legal tradition that we now refer to as the common law.

In fact, the change that started in 1066 was neither sudden nor dramatic. William found awaiting him a fairly sophisticated and long-standing system of dispute resolution. Indeed, one of his first acts after killing King Harold at the Battle of Hastings was to declare that the old system of Anglo-Saxon laws would continue in force.

The problem with the pre-Conquest legal system in England was not its lack of sophistication (indeed, some of the old Anglo-Saxon cus­tomary rules were very complicated), but rather its lack of commonality.

Anglo-Saxon law was based on local custom. And because England had been subject to so many invasions in the six cen­turies since the departure of the Romans, there were in fact several different sets of customs in force in different parts of the kingdom. So even though a unified political entity called England had existed since the ninth century, there was no single set of rules which governed society as a whole.


The greatest result of the Norman Conquest was the introduction of precise and orderly methods into the government and law of England. By this it is meant that while they did not directly impose a new body of substantive law in England, they did build on the pre-existing social structure to establish an admin­istrative framework which allowed a new legal system to develop and flourish.

The system of economic and social organization introduced by the Normans is known as 'feudal­ism'. Stated in simple terms, feudalism was a system of land ownership based upon a formal social hierarchy. Feudalism appeared in Europe when the Kings took over Roman imperial authority but lacked the funds to maintain a functional government and strong army. So they found that their only alternative was to grant land as reward for service. At the top of the hierarchy sat the king, who was said to have dominion over all lands in the kingdom. Under the king sat a first level of land-owning nobles who were known as tenants-in-chief, meaning that they held title to their lands by virtue of a direct grant from the Crown. Under the tenants-in-chief were a series of descending levels of sub-tenants, each of whom held land by virtue of a grant from the next higher level in the chain, culminating in the lowest order of land-hold­ing freemen.

The underlying premise of feudal tenancy was the mutual promise. In addition to the loyalty that all subjects owed the king, feudal loyalty was owed one level upwards: each landholder swore an oath of alle­giance to the lord - the immediate superior in the chain. Attached to the bond of loyalty was an obligation to provide one's lord with a share of one's crops and, if necessary, to engage in military service on the lord's behalf. In return, lords promised to protect and assist their ten­ants in time of need.

The reason that the Norman kings employed the feudal system in their governance of England was a simple one: at no time did they have enough power to exercise personal control over the entire country. Accordingly, shortly after asserting his right to the throne, William effectively leased out the greater part of his new realm. Most of the land was granted to Norman nobles who had assisted William in the Conquest, but some was granted back to the Anglo-Saxon nobles in return for promise of loyalty to the new regime. The feudal system of land occupation or possession which came into being after 1066 formed the basis of English property law until 1921, as it still does in some parts of common law countries today. Just as importantly, however, feudalism laid the foundation for a stable system of government in which the institutions of civil authority could develop and replace dictatorial military rule.

The birth of the common law: the extension of the king's jurisdiction
As has been mentioned, William did not formally abolish the old loca­l Anglo-Saxon courts. Indeed, the establishment of feudal system in some ways gave the local courts a new life. Nevertheless, the political domination through feudalism asserted by the new kings contained within it the seeds of the ultimate decline of local customary law.

Although they varied considerably in their ability, the Norman kings took their job very seriously. One of the prime responsibilities of a monarch, of course, is to hear complaints from subjects. Accordingly, as William and his successors traveled around the kingdom, they would 'hold court', and receive petitions from the people.

Often, the petitions complained of acts of injustice committed on them by local officials, or of general unfairness in local administration. Indeed, one of the earliest books about the common law described that the litigation in local courts as the 'utterly uncertain dice of pleas'. In a reaction to this - and in part because they had no real source of local knowledge - the premise upon which the kings and their delegates dealt with these petitions was that 'like cases should be treated alike'. This was the foundation of the system of stare decisis. Finding a precedent is just another way of say­ing 'finding out how other similar cases have been treated'.

In this attempt to avoid the arbitrariness lay the reason for the common law's success. Since the king was more likely to be free of parochialism and local prejudice when he resolved disputes than the local lord or his deputies, people began to seek the king's justice in prefer­ence to that of the local lords.

There was another attraction to the new system: unlike the rulings of a local court, the king's decrees legal force throughout England. To state it in modern terms, for litigants shopping for the most suitable forum, the possibility of obtaining a judgment which would be recogn­ised, and hence could be enforced, everywhere in England had an understandable appeal.

Over time, a body of royal rulings dealing with petitions for justice came to be built up. This new body of rules began simply enough as the kings' desire to establish and maintain peace and order (and thereby to secure their own position) throughout the newly con­quered territories. But this exercise contained the seeds from which grew the sys­tem of private dispute resolution that we now know as the common law.

The king's rules applied everywhere throughout the land. They applied commonly to all Englishmen, regardless of the custom in their own county. Accordingly, the body of rules stemming from these royal judgments came gradually to be known as the common law.

The Start of legal structures

From the earliest times after the Conquest, the kings had gathered around them a body of trusted advisers. This body was known as the Curia Regis - the king's court. But 'court' was used in its older sense of referring to the king's personal retinue, rather than in the mod­ern judicial sense. The King's Court functioned as a general advisory body, providing the king with counsel and advice before he made deci­sions. Gradually, though - probably because the king wished to be relieved of some of the more tedious aspects of ruling - some decisions began to be left to members of the Court itself.

In addition to the King's Court, the kings began to appoint officials called 'justiciars'. The justiciars acted as a royal representative in the king's absence from England, something which was common in the decades immediately following the Conquest. The English kings were still the Dukes of Normandy with extensive land holdings in France. Indeed, it was not until the era of King John, which began in 1199, that a post-Conquest English king spent more time in England than he did abroad.

The appointment of these royal delegates - the Curia Regis and the justiciars - marked an important step in the transformation of the common law from a personal instrument of the king to a real institution of government. In the early days, if one wanted to seek the king's intercession in a dispute, he had to approach the king himself. This meant going to where the king happened to be in residence - which was not always an easy thing. But with delegates who could in the king's absence act on his behalf, and importantly, render decisions in his name, the lot of the seeker of royal justice was made much easier.

Even more significant was the appointment, which began in the twelfth cen­tury, of 'Justices in Eyre' (itinerant justices), a group of travelling justices who, although not necessarily members of the King's Court, carried the king's commission to hear and resolve dis­putes in all parts of the country. For the purposes of these travelers'' commissions, England was divided into a series of regions, or 'cir­cuits', which formed a basis of legal administration in England until the 1970s.

Margna Carta

Magna Carta

At the same time, the King's Court continued to have a significant involvement in judicial business, for large numbers of people continued to approach the Royal Household with their problems. As the Household became more and more busy, the King's Court began to sub-divide into more specialised bodies. Over time, it gave birth to a body of professional judges whose job it was to hear disputes between common people. This body became known as the Court of Common Pleas. One of the demands which the unhappy King John agreed to in Magna Carta was that the Court of Common Pleas would not travel with the king, but would remain in a fixed place. This was later designated as Westmin­ster, and the Common Pleas were heard there until the court ceased to exist, over 660 years later.

There was also a body of specialised financial advisers, who came to hear disputes involving the royal revenue. Because the table at which this body sat was covered with a chequer-patterned cloth, it came to be known as the Court of Exchequer. It is for this reason also that the modern-day British Treasurer is known as the Chancellor of the Exchequer.

Beyond the Common Pleas and the Exchequer, there remained a group of advisers who continued to travel with the king. These travel­ling advisers came over time to be divided into two sorts: those whose task it was to advise on (or carry out in the king's name) the resolution of individual disputes, and those whose job it was to advise on more general questions of policy. Although there continued for a long time to be considerable overlap between the two divisions in terms of member­ship, the latter became known as the 'Council', while the former became known as 'King's Bench'. Unlike the Common Pleas, the King's Bench had a monopoly on those disputes involving the king himself. King's Bench later developed into a criminal court because the criminals broke the King's peace and order.

These three dispute-resolving institutions - the Common Pleas, the Exchequer and the King's Bench - are together known as the com­mon law courts, and their decisions became common law.

The writ system

The formal division of the King's Court into the three common law courts and the Council was an attempt to cope with the demands of centralised government. But it was not enough. People still flocked to the new common law in such numbers that it came close to overload. In response, attempts were made to regularise and formalise its proce­dures. The chief means of systemisation was through what is known as the writ system.

A 'writ' is a written command from the king that something be done. In the context of legal history, a writ was a com­mand from the king to the sheriff (the king's representative in the county) that a person against whom a complaint had been made (i.e., the defedant) be brought to court to answer the allegation

The writs were what we would think of today as standard forms, and for each different type of complaint, there was a different template. Writs were purchased by plaintiffs from a royal official - a sort of private secretary to the king - called the Chancellor, and it was through the royal authority flowing from the writ that the legal process was begun.

This formalisation did not stop the demand for the king's justice. The common law continued to expand, and as more and more cases were taken to the king's courts, the number of different types of writs grew dramatically. This led to a reaction on the part of the local lords, who were by now beginning to be suspicious about the degree to which the king's system of justice was supplanting their authority over their own feudal tenants.

Accordingly, in 1258, the nobles extracted a prom­ise from the king, known as the Provisions of Oxford, that no new types of writs would be issued without the express authorisation of the Council (whose membership, of course, included many of the nobles in question). Because of the popularity of the common law, the nobles were forced to allow some new writs to be created. And to accommodate the popular demand for court hear­ings in cases where new forms of writ would not be issued, the common law judges began to permit the use of what are known as 'legal fictions', that is, the use of false allegations of fact, to enable new types of case to be brought within the bounds of one of the existing writs.

The story of the writ system is an important one, for it highlights one of the underlying features of the common law system, namely its obsession with procedure. People often express frustration at the extent to which even now players in the common law process remain preoccu­pied with questions of procedural nicety, but they forget that the early common law was tied so closely to formal rules of pleading. The abil­ity to bring a suit in the king's courts depended upon being able to find a 'form of action' which would accommodate the claim.

Trial procedures in the early common law

The early common law did have some systemic deficiencies. One of its chief weaknesses was the converse of a reason for its popularity - the lack of local knowledge on the part of the king or his deputies.

In the early days, they attempted to circumvent this problem by an appeal to divine intervention. Trials by ordeal and battle reflected an expression of faith that God would identify the wrong-doer. The ordeal was commonly used in criminal cases. There were different forms of ordeal: the scalding of a hand or arm with boil­ing water or the burning of the hand with a red-hot iron (the healing of the hand or arm within a certain period of time being a sign from God that the person was not guilty) were two commonly used ordeals, as was the casting of an accused person in a pool of water (in which case floating was a sign of guilt - that he or she had been rejected by the water). Trial by ordeal came to an end in 1215, when the Church for­bade the participation by priests in the process.

Trial by battle was used in non-criminal cases, but it was based on a similar premise -- that God would not allow a party in the wrong to be victorious. In a battle, the participants were each armed with a long staff and a leather shield, and the fight continued until one party gave up or was knocked unconscious. Infants, women and the elderly could employ someone to fight in their stead. It became virtually obsolete by the end of the thirteenth century, the trial by battle was not for­mally abolished until the 19th Century.

Existing alongside the ordeal and battle was another means of proof whereby a defendant could disprove allegations made against him or her by producing a certain number of witnesses who would under oath support the defendant's version of the facts. Over time, local knowl­edge set by the witnesses came to fill the void left by the decline of the ordeal and battle.

What happened was that the travelling justices would enlist the services of a number of men from the locality who would, on the basis of their local knowledge, determine which party was probably telling the truth. These men came to be known as the 'jury' (from jurare - 'to swear'). Possibly because of the religious symbolism (the number of Apostles being the same) the number of jurors was eventu­ally settled as 12. It is important to note that initially, the jury was supposed to act on the basis of its prior knowledge and assumptions about truthfulness. The notion of the impartial jury is a comparatively recent creation.


As the common law became more systemised it also became more rigid. What had begun as an informal (in the sense of being procedur­ally simple) and comparatively speedy means of dispute resolution had instead become not only procedurally complex, but also (because of the overloading of the courts) often extremely slow.

Moreover, because methods of proof were so primitive, the common law became preoccu­pied with form. So, if, for example, a person had executed a document, the common law would say that he was legally bound by its terms, even if it could be shown that his actions had been based on a mistake - or even if they had been induced by a fraud. It seems a paradox, but the very thing which had made the common law so popu­lar - its simplicity in procedure and its preference for pragmatism over form - led to its becoming the opposite: highly complex in proce­dure and addictive to form.

Beginning in the fifteenth century, people started again to approach the king with petitions complaining of injustice - injustice now often claimed to have been suffered at the hands of the common law courts. To begin, the king responded to these complaints either himself, or through the Council. But, as before, he soon began to delegate respon­sibility for looking after these petitions for redress to a royal official. This time, the official chosen was the Chancellor, the person whose job it was to issue writs.

The fact that it was the Chancellor who was chosen to address these complaints of injustice had an important bearing on the way that they came to be handled. This is because for a long time, the Chancellors (or Lord Chancellors, as they later became known) were trained as priests. When they looked into allegations of injus­tice, they did not, as the common law judges did, base their judgments on the judicial precedent. And when they were confronted with vexing issues of proof, they did not look to form, as their common law brothers did. Instead, they grounded their judgments on religionary rules. This body of Chancellor-made, religion-based law became known as 'equity'. The body set up by the Chancel­lor to hear equitable claims became known as the Court of Chancery.

One of the features of equity is that it is a discretionary system of justice. In the common law, if a person could prove certain things, the person established a legal right to a remedy. In equity, in contrast, the Chancellor retained discretion not to grant a requested remedy if the plaintiff was not morally deserving. 'Man who seeks equity must do equity' and 'he/she who comes into equity must come with clean hands' are statements of equitable principle (or 'equitable maxims') which capture the essence of this discretion.

Initially, equity and common law co-existed. Equity was a means of occasionally tempering the harshness of the law, and cooperation between the Chancellors and the common law judges was a matter of course. Eventually the two systems became rivals. In the early 1600s, this rivalry turned into open hostility as a result of personal enmity between the Chancellor of the day, Lord Ellesmere, and the Chief Justice of the King's Bench, Sir Edward Coke. Their dispute was resolved only after the personal intervention of the king, who called a confer­ence of all the senior judges to discuss the issue. The conference recommended that in the case of conflict between the two, equity should prevail. This is still the rule today.

The moral aspect of equity is well captured by the so-called 'equitable maxims', a series of 12 statements upon which equitable doctrine is supposed to be based. In addition to the two already mentioned, they are:

  • equity will not suffer a wrong to be without a remedy;
  • equity follows the law;
  • he/she who is first in time takes precedence;
  • where the equities are equal, the law prevails;
  • equity assists the diligent, not the tardy;
  • equity is equality;
  • equity looks to the intent, rather than to form;
  • equity looks on that as done which ought to be done;
  • equity imputes an intention to fulfill an obligation; and
  • equity acts in personam.

Equity remains an important source of law today. One very important area of modern law which is heavily flavoured by equitable principles is the law of trusts, and important legal reme­dies which owe their origins to equity, i.e., equitable remedies, include the injunction, the declaration and the contractual remedies of rescission and specific performance.


  • Pre-Conquest: the period before the Conquest of England by Williams.
  • Commonality: uniformity, 即统一,一致。
  • Hierarchy: a series in which each element is graded or ranked, 可翻译为“社会阶层”或“等级”。
  • Parochialism: 地方保护主义,区域性的狭隘意识
  • Retinue: 有随从、扈从之意。
  • Magna Carta: 历史上著名的英国大宪章。

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