common law

common law. The origins of the common law lay in the justice of the king, exercised through his curia regis, rather than the customary law exercised in the old communal courts of shire and hundred, or the feudal law exercised by the lord in relation to his own vassals, free and unfree. In the reign of Henry I the justice of the king in his curia was sometimes invoked in favour of a subject, though justice was usually to be sought in the communal or feudal courts.

As overlord of all subjects, the king had a residual right to give justice to all, and as feudal lord of the tenants-in-chief he had the right and the duty to sit in his curia regis to hear their disputes, or to deal with matters relating to their feudal duties. Until the reign of Henry II, royal justice was available to subjects who were not tenants-in-chief only in exceptional cases, since the proper court for matters relating to land or tenure was the court of one's lord and other matters were the province of the court of shire or hundred. However, in the reign of Henry II, access to the king's justice was extended by the enactment of a principle that ‘no man need answer for his freehold land without the king's writ being obtained’. As a result, the writ of right patent would issue to the lord ordering him to hear the case between his free tenants; where there was a dispute between tenants-in-chief, the alternative ‘praecipe’ form of the writ of right would be issued, ordering the defendant to return the disputed land or to appear before the king's justices to explain his refusal. Further, through the development of the Grand assize and the petty assizes, disputants over land would have their case tried by an inquest of neighbours who gave a verdict on oath before the royal justices. As these royal writs and particularly the petty assizes became popular with litigants, so they increasingly sought the justice of the king's courts rather than the local or feudal courts, which slowly declined. This decline was caused by a number of factors, legal, social, and economic, but the influence of royal justice and the effectiveness of its procedures (e.g. petty assizes, trial by jury) led inexorably to the decline of rival systems of justice and the triumph of the king's justice or, as it came to be known, the common law.

The king's justice was dispensed by the itinerant justices of the curia regis and gradually the principles and procedures of the king's law grew from their practice, drawing on the customs of different areas of the country. When the courts of Common Pleas, King's Bench, and Exchequer developed as separate entities, the law they applied was the common law. By the time of Edward I there was in existence a ‘common law’—the law administered in the king's courts throughout the land and therefore ‘common’ to the whole kingdom.

The term ‘common law’ came to be used of the English legal system and, generally, to describe a system where the law is built up through the decisions of the courts. Hence it is used to describe the legal systems of former colonies such as the majority of the USA and the member countries of the Commonwealth, which share the common law tradition. The term is also used to describe those rules and principles of law which are based upon the decisions of the courts as distinct from the rules and remedies which were applied in the Court of Chancery. Finally the term is used to describe rules of law which have been established by the courts as against laws which are formally enacted by Parliament (statute law). See also civil law.

Maureen Mulholland