Evolution of English Common Law: From Anglo-Saxon Roots to Equity

Posted on Apr 6, 2025 in Law & Jurisprudence

Evolution of English Common Law

1. Background:

  1. Anglo-Saxon conquest of Great Britain: 450-700
  2. Main institutions: Shires and shire courts (presided by shire reeves or sheriffs, king’s men); Hundreds and courts of the hundred (also presided by king’s reeves); Both applied customary Anglo-Saxon law but under a royal structure
  3. Norman conquest of Great Britain: 1066
  4. Radical feudalism imposed at a single stroke: all land is declared to be owned by the king, who distributes it among his followers
  5. Royal authority, stronger than in continental Europe
  6. Trials decided by battle always, in both civil and criminal cases, except if there was a settlement
  7. Common law emerged in the 12th century from the efficient expansion of institutions which existed in an undeveloped form before 1066

2. Judges and Juries:

  1. Common law starts properly with King Henry II Plantagenet (1154-1189)
  2. It was a reshaping of the existing laws
  3. Justices in eyre: itinerant judges (royal judicial commissioners) sent out to each shire
  4. In each shire, a jury would present the accused: the Grand Jury
  5. The case would then be resolved: First by ordeal, then (13th century) by a “petty jury”
  6. The importance of the jury, and what questions of fact should be posed to the jury, led to a development of substantive law

3. The Writ System:

  1. The king had his counselors in the curia regis, among which the Exchequer and the Chancery, the writing office of the king
  2. A writ was issued when the Chancery received a complaint (writs were paid for or ‘purchased’) as a way to initiate formal litigation
  3. The writs were sealed-when-folded letters containing instructions for the sheriff’s eyes only
  4. The sheriff would make notes on what action had been taken and return it over to the justices in eyre
  5. Writs became standardized, hence the normal method for initiating litigation

4. Roman Law Prohibited:

  1. The writs show some knowledge of Roman contract law and romano-canonical procedure, but the teaching of Roman law was prohibited by the king in 1149
  2. The ban was soon repealed, but there would be no lively center of academic legal learning in England
  3. Soon legal training would become the prerogative of the practitioners and the Inns of Court
  4. The magnitude of continental learned law was seen, but too late to play a significant role in English legal development: already a stable, well-organized, centralized administration of justice
  5. 1236: “Nolumus leges Angliae mutari:” we do not wish the laws of England to be changed
  6. The spoken language of the courts was French, not Latin
  7. No learned legal education in England or the US until the 19th century

5. The Growth of the Central Courts: 13th Century

  1. Increase in the judicial business of the curia regis
  2. Two sets of plea rolls: The King’s Bench, itinerant (eventually settled in Westminster) & The Common Bench or Court of Common Pleas, settled in Westminster
  3. The Common Bench became the exclusive jurisdiction in all personal and real actions (civil actions)
  4. The King’s Bench only by way of exception: serious criminal cases, &c., although in the end gained universal criminal jurisdiction
  5. In the 14th century, the King’s Council separated from the King’s Bench and became a Parliament with legal jurisdiction (especially the House of Lords)

6. Equity:

  1. The Chancery would issue special remedies or injunctions based on equity and good faith (i.e., outside the common law) in special circumstances:
  2. In the 15th century, the Chancellor’s cheap and rapid aiding, supplementing, and correcting of the common law made this jurisdiction popular
  3. 15th and 16th centuries: Common law and Equity stand side by side in harmony
  4. However, Equity became as rigid and formal as Common law. In 1675 it could be said without irony that “a contract without consideration was binding in conscience but not in Equity”
  5. Result: a juxtaposition of two bodies of positive law
  6. Common law and Equity applied by separate courts until 1875, when they start to be applied jointly throughout the same and only judicial system

7. Remedies, not Rights:

  1. Procedural nature of common law
  2. A system of remedies (writs), not rights
  3. Just like classical Roman law: writs would correspond to the Roman formulae
  4. Another similarity to Roman law: the dualism common law / equity, akin to the dualism ius civile / ius honorarium
  5. English lawyers had to learn afresh, e.g., how to move from stricti iuris contracts to contracts based on good faith