Figure 1.--The basic law of Britain (except Scotland) is English common law, an unwritten law based on custom and usage. Emerging from the European Medieval era was English common law, England's great gift to America and its other colonies. English common law was a necessary comcomitant of capitalism which allowed the West to create the modern world. France had nothing like English common law as a result of royal absolutism. As a result, of the English colonial experiebce, common law is also the foundation of American law and law in the other former colonies, includng England. This portrait is by Irish painter George William Joy and the title was, "The judge and the child, an innocent witness of a crime."

The basic law of Britain (except Scotland) is English common law, an unwritten law based on custom and usage. Emerging from the European Medieval era was English common law, England's great gift to America and its other colonies. English common law was a necessary concomitant of capitalism which allowed the West to create the modern world. France had nothing like English common law as a result of royal absolutism. Modern England is an amalgam of many different peoples and English common law shows an imprint of many of these people. The exception was the Celts and Romans. The Romans suppressed Celtic culture and the Anglo-Saxon s suppressed Roman culture, including Roman law. Thus English common law is less influenced by Roman law than is the case of continental Europe. Thus English common law has a Germanic rather than a Roman foundation. Its origins are the legal concepts of the Anglo-Saxon invasions (5th century AD). King Alfred the Great (849-99 AD) reportedly translated the limited legal texts of the day into English. To this Anglo-Saxon based was grafted Danish (Viking) legal traditions, most importantly the principle of trial by jury, William the Conqueror's victory at Hastings (1066) ended Anglo-Saxon rule. It did not, however, end Anglo-Saxon law. William combined Anglo-Saxon law with Norman law. William had ulterior motives. If he had completely suppressed Anglo-Saxon institutions, his rule would have been dependent on the Norman barons. By wining over Anglo-Saxon England, the English crown could draw on a much wider base of support. The combination of Anglo-Saxon and Norman law emerged as English common law. It developed as custom and precedent rather than by written code. This common law came to be a real force (14th century). Courts and lawyers began to defer to precedents in legal decisions and commentaries. Another strain of English law is the law of equity (chancery). These were law issued by the monarchy to order or prohibit specific acts. The first major compendium of English common law was Sir William Blackstone's Commentaries on the Laws of England (1769).

Definition

The basic law of Britain (except Scotland) is English common law, an unwritten law based on custom and usage, Emerging from the European Medieval era was English common law, England's great gift to America and its other colonies. English common law was a necessary concomitant of capitalism which allowed the West to create the modern world. France had nothing like English common law as a result of royal absolutism. Common Law is so named as it was the law common to all England, as opposed to the law enforced by the feudal barons in their fiefdoms or provincial precedents as decided by the local and manorial courts. Common Law is also understood to be 'law by precedent', distinguished from statutory law, i.e., parliamentary legislation to which Common Law is complementary. American jurist Oliver Wendel Holmes Jr. provides a concise explanation of the common law, "The life of the law has not been logic: It has been experience. The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics." [Holmes, p. 1.]

Development

Modern England is an amalgam of many different peoples and English common law shows an imprint of these prole. England's greatest monarchs played key roles, Alfred the Great, William I, and Henry II. Ironical some of the most important steps in the development of the common law was made during some of the worst kings, such as John. The reaction to their attempts at royal absolutism resulted in precedents such as the Magna Cara. And weak kings also allowed important precedents and the growth of parliamentary authority.

Roman Britain (1st-4th centuries)

English common law is an alamgum if the legal traditions of mamy of peoples that gave rise to modern Britain. The exception was the Celts and Romans. Nothe Celts and especially the Roman had devlioped legal traditions. Their cultural traditions, however, were largely supressed. The Romans suppressed Celtic culture and the Anglo-Saxon s suppressed Roman culture, including Roman law. Hustorians can finf no trace of Celtic or Toman law surviving into the Angl-Saxon era. [Lefroy] Thus English common law is less influenced by Roman law than is the case of continental Europe. Of course there is a defunitie Ronam influence, but it cane through the Normans and the Christian Church that was restablished the vigorous missionary work in the pagan Anglo-Saxon kingdoms.

Anglo-Saxons (5th-11th centuries)

Thus English common law has a Germanic rather than a Roman foundation. Its foindatioins are the legal concepts of the Anglo-Saxon invaderss (5th century AD). As these were pre-literate sociries, they brought no written legal codes with them to Britain. Fundanentally, Anglo-Saxon law rested on the tension between two fundamental principles-- folkright and privilege. As is often the case in traditional societies, the Anglo-Saxons assigned a great valie to an individual's word as expressed in a sworn promise. At the heart of the legal system that has developed was an oath, taken by all freemen from the age of 12 (10th century). They swore to not only abstain from criiminal behavior, nut to denounce any criminal behavior he observes. This esentially esrablished a sense of social community and responsibility that became the basis for law. Theft was thus seen as an act of disloyalty. Individuals who broken their oath and committed a crime might not only be published, but there coukdbe consequences for his family. Individual’s actions were considered not as enbtirely personal acts but as collectibe behavior of kinship groups. This only began to change until the late Anglo-Saxon era (19th century). Initially a local assembly of some kind or a tribal leader would try the law breaker. Eventually as the Anglo-Saxon kingdoms evolved a hierarchy of courts in the shires and boroughs were established as well as local courts known as 'hundred' courts. Old English was first written using a runic script called the futhorc, but this was replaced by a version of the Latin alphabet introduced by Irish missionaries (8th century). The first codification of Anglo-Seaxo law occurred only after Christian misiinary woork had brought Cristianity and writing beyond runic incriptions (7th century). Pope Gregory the Great sent Augurune in a missiin to Christainize the Anglo-Saxons (595). Soin after, King Æthelberht issued a set of laws known as Æthelberht's Code (602/03). It was issued in 90 secrions. [Geary, pp. 209-11.] This Code is the earliest known legal code composed by any Germanic nation. [Stenton]. They are surely the first written Anglo-Saxon legal document. This must be the case as literacy arrived in Anglo-Saxon England with Augustine's mission. [Yorke] It not only reflects Germanic legal princioples, but the imprint of the Church which was a repository for Roman Law. There are significanbt provisions for the Church. Similar codes appeared in other Anglo-Saxon kingdoms, but the full texts are lost. Frangment from a Kebtbkegal codeexist (c680). King Ini of Wessex issued a code (c690). Mercian laws are know to exist, but virtually nothing is known about them. Notavly Folkright was recognized in differentbv ways by the East and West Saxons, Mercians, Northumbrians, Danes, and Welshmen and continued after the tribal kingdoms disappeared (8th-9th centuries). The best known of these codes was issued ny King Alfred the Great of Wssex (890). King Alfred appears to have translated the limited legal texts of the day into English. The resulting Code was not only issued by Alfred, but written by him. He sought to combine the legal codes of the Anglo-Saxon kingdoms. It is by fae the largest and best preserved piece of Anglo-Saxon kaw prior to the Norman conquest (1066). It is the only surviving Anglo-Saxon law code since King Ine’s, some 200 hundred years earlier. Thus it was the primary expression of Anglox-Saxon culture and law. Further legal codes followed from Edgar, Ethelred, and Canute. Anglo-Saxon Law is imprtant becuase eventhough the Norman's dominatedn government, they were unavble to simply transplant theirsystem to conquered England. This reflected the sophistication of the intact Anglo-Saxon legal system. What occured was a new body of law---Anglo-Nornan law, merging Anglo-Saxon and Norrman legal rraditions. .

Danes/Vikings (9th-11th centuries)

To this Anglo-Saxon based was grafted Danish (Viking) legal traditions, most importantly the principle of trial by jury, This was a crucial development. The jury allowed the for lay participation in the justice system. It also offered a substitute for the wholly inadequate methods of proof of the traditional Germanic law-ordeal, trial by battle, and wager of law.

Normans (1066)

Duke William's victory at Hastings (1066) ended Anglo-Saxon rule. William I is of course known as the Conqueror. He was in fact an extraordinarily effective administrator and ruler who made decisions that profoundly affected the future of England. William's victory did not end Anglo-Saxon law. William decided to combined Anglo-Saxon institutions and law with those of Normandy. William had ulterior motives. If he had completely suppressed Anglo-Saxon institutions, his rule would have been dependent on the barons he created. By wining over Anglo-Saxon England, the English crown could draw on a much wider base of support. William continued the jury system already developing in England and establishment a centralized royal court system. Under William the royal courts were very limited. Justice was primarily dispensed in local and feudal manorial courts, but subsequent monarchs would expand the royal courts. And in the centralized royal courts a definite legal tradition could develop--the common law. And in these courts justice could be administered by trained professional judges and their attendant clerks. Until the creation of the royal courts, justice was largely determined by men without legal training--popular assemblies or groups of wise men. The Normans spoke French and had developed a legal system in Normandy. They had no professional lawyers or judges to staff courts. Rather literate clergy served as administrators. Some of these chirchmen were familiar with Roman law which was thevbasis for the canon law of the Church. This was also influential in the developing European universities that studiedRoman Law. Canon law influenced the English church courts, but the revived Roman law was less influential in England than elsewhere in Western Europe.

Magna Carta (1215)

Magna Carta was an actual document, but it promoted the growth and direction of English Common Law because it placed limits on royal authority. It was the Barons and high churchmen demanding the limits to protect themselves. But over time through the development of English Common Law, those rights were extended to the humblest of the monarchy's subjects. Magna Carta meant the Great Charter. King John is a rare English monarch with no Roman numeral after his name. Because of his abusive rule violating the developing Common Law. There as a result been no John II. The Barons and high churchmen forced the Ling to sign Magna Carta at Runnymede, near Windsor (1215). The document was first drafted by the Archbishop of Canterbury. The purpose was to prevent a civil war between powerful rebel barons and an unpopular king pursuing royal absolutism. Magna Cara consisted of a long list of demands, but basically was Jon's pledged to protect the rights of the church and barons. The Barons were promised protection from illegal imprisonment, access to swift justice, and limitations on feudal payments to the Crown. It was to be implemented by a council of 25 barons. In reality, neither side honored their commitments. And Pope Innocent III annulled the Charter resulting in the First Barons' War. King John died soon after signing Magna Carta . The regents of his young son, Henry III, reissued the document (1216), but without its more radical content. It proved to be a failed effort to gain support. At the end of the Baron's War (1217), Magna Carta became part of peace treaty signed at Lambeth. It was here that the document began to be called Magna Carta. This was because the more limited Charter of the Forest was issued at the same time. The governing force behind the Magna Carta and the growth of democracy was taxes and money. Henry obtained new taxes, but in exchange Magna Carta again (1225). His son, Edward I, was forced to do the same (1297). He had to confirm it as part of English statute law.

Emergence

The combination of Anglo-Saxon and Norman law emerged as English common law. It developed as custom and precedent rather than by written code. The crafting of English Common Law was begun in the reign of Henry II, surely the great achievement of this forceful monarch. Henry had foreign legal learning and instituted fundamental legal reform in England. This was done in part to undermine the authority of the feudal barons and the clergy. Henry's royal judges and those of his successors nurtured the Common Law which developed from the procedure of the King's central courts, the Court of King's Bench, the Exchequer, and the Court of Common Pleas. This common law came to be a real force (14th century). Courts and lawyers began to defer to precedents in legal decisions and commentaries.

Law of Equity

Compendium

The first major compendium of English common law was Sir William Blackstone's Commentaries on the Laws of England (1769).

America

Of course the importance of English common law is not just that it has impacted England. As a result of the British Empire, English common law was transplanted in countries around the world, most importantly the United States. One of the interesting questiins of history is why has North America prospered while Latin America has done so poorly with millions of peole south of the Rio Grande attempting to enter North America. The answer is a complex one, but part of any serious answer ha to be English Common Law which served as a foundation for both the American and Canadian legal system. The American Colonists rebelled against the British king and parliament, but not against English Common Law. It was retained by the Americans after the Revolution and continues to be the rock bed of American jurisprudence. One of the most disturbing aspects of modern American politics is the willingness of the Democratic Party to jetison the Constitution and English Common Law to pursue its class, racial, and gender political objectives. This was on display with President Obama's star chambers on university campuses and most recently the Kavenaugh attempted lyching in the U.S. Senate. And it is not just Democratic radicals. We see former Vice President Joe Biden, often called the voice of reason in the Party, attacking English Common Law. Biden has made it clear that he is more than willing to sacrifice America's crown jewels to improve his shaky standing with women. Ironically a disturbing demonstration of the kack of political courage. He told a gathering at the Russian Tea Room in Manhattan, a Biden Courage Awards ceremony, that the trouble with America is the white man and the laws he has created (March 26, 2019). [Berrien] The former vice president apparently believes that that generations of evil white men going back th medieval England have encouraged violence against women. According to Biden, "It's an English jurisprudencial culture, a white man's culture and its got to change." And he did not specify just what he wanted to change or what non-white (meaning non-European) legal systenm he prefers. Does Biden think that India would be better off with a legal system that supported sutte, thuggees, and untoucability rather than one based on English Common Law? And the question arises, just what bedkrock element of English Common Law does he want to jetison. There are many possibilities: government officials are not above the law, the rle of law, trial by jury, presumption of innosence, open public trials, rules of evidence, access to legal counsel, prohibition of forced confessions, spusal testimony, chronological limits, habeus corpus, special treatment of minors, property rights, ability to face acusers, protetion from cruel an unusual punishment, limits on police power, or much more. Biden once more got his history wrong. [Shapiro] And he does not seem to be aware that the countries where women have made the most progress toward gender equality or countries which have legal systems based on English common law. Important coded followed by Ethelred abd Canute (11th century).

Sources

Berrien, Hank. "Watch: Biden rips 'White Man's Culture' For mistreatment of women," Daily Wire (March 27, 2019)

Caenegem, R. C. van. The Birth of the English Common Law (Cambridge: University Press, 1973).

Churchill, Sir Winston S. "The Birth of Britain," Vol. I (Barnes & Nobel: New York, 2005), 458p. The original edition was published in 1956.

Geary, Patrick J. Readings in Medieval History. (Peterborough: Broadview, 1998).

Holmes, Oliver Wendell Jr. The Common Law (1881). Holmes before his appointment to the Supreme Court delivered a series of lectures at the Lowell Institute in Boston (1880). They were subsequently published here. His lectures and survey of English common law had a profound impact on Americam jurisprudence.

Lefroy, A.H.F. The Anglo-Saxon period of English law," The Yale Law Journal (February 1917) Vol. 28, No. 4, pp. 291-303.

Maitland, Frederic William. English Law and the Renaissance (Cambridge: University Press, 1901).

Potter, Harold. An Historical Introduction to English Law and Its Institutions (London: Sweet & Maxwell, 1932).

Shapiro, Ben. "In 'White Man's culture' remarks, Biden shows how little he knows about history," The Daily Signal (April 3, 2019).

Stenton, Frank M. Anglo-Saxon England (Oxford: Clarendon Press, 1971).

Yorke, Barbara. Kings and Kingdoms of Early Anglo-Saxon England (London: Seaby, 1990)..

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Last updated: 11:06 AM 4/22/2020