English Common Law

English Common Law

Sources

Origins. The English common law, from which Americans borrowed heavily in the colonial period, had evolved for centuries in England. Its principles and rules were extensive and complex, and they varied by region and locality. Common law developed through practical experience over time and thus became distinguished from a legal code in which the law was summarized all at once. The royal courts established by the Normans slowly harmonized the divergent laws and practices that had characterized the Anglo-Saxon courts before the conquest of England in 1066. Because the royal courts were in greater contact with one another than the older regional courts had been, there developed similarities in interpreting the law. This situation did not create one law for all of England, as regional and local variations continue even today, but it did overlay local variations with principles of interpretation that were common (hence the term common law) to the nation at large.

Coke. This kind of law was not legislated by assemblies but instead evolved through the decisions of judges as they confronted new situations requiring the applications of established principles. Perhaps the greatest of these interpreters was Sir Edward Coke, chief justice of Common Pleas and King’s Bench from 1606 to 1616. He lost his position after arguing that the king, James I, was bound by the law like any other man. But his collection of common-law rulings, called Reports (1600-1615), and his later books, the four-volume series Institutes (1628-1644), became the definitive works on English law for succeeding generations.

Colonies. Bringing the common law to America was not easy. For one thing, a complex legal system did not easily meet the needs of the simple communities that were founded on the eastern shore of North America in the 1600s. Colonial lawyers and judges had little interest in the esoteric knowledge of those trained in common law, the principles of which seemed at times foreign and strange compared to local expectations. Wealthier colonial

elites tended to control court appointments, and a looser, more open attitude toward legal interpretation often suited their economic interests better than the common law. In the early years the pattern was to borrow as much as seemed necessary and no more. Lawyers often were frowned upon as unnecessary at best, and at worst as nuisances who confused other people with silly legal intricacies.

Eighteenth Century. Not until the colonies were established and growing in social and economic complexity did interest mount in borrowing extensively from English law. As the colonial legal systems became Anglicized after 1700, the common law was used more widely. Unfortunately most colonial judges did not understand common law, and relatively few American lawyers studied in England. Not until Sir William Blackstone produced his Commentaries on the Laws of England (1765-1769) did there appear a reliable and thorough guide to the subject. Formal legal training did not improve appreciably until the late colonial and Revolutionary eras. By the 1800s English common law was accepted by many as a part of the national legal heritage, especially in states like New York. But even then Thomas Jefferson argued that Americans had never adopted common law. Well into the nineteenth century leading politicians argued that the common law was undemocratic and that only experts with years of training could master it. Many maintained that it was better to be governed by legal codes adopted by the legislature than by an abstruse set of judicial rules.

Sources

Daniel J. Boorstin, The Mysterious Science of the Law (Boston: Beacon, 1958);

Bernard Schwartz, The Law in America (New York: McGraw-Hill, 1974).