COMMON LAW The term "common law" originally derives from the reign of Henry II of England, in the 1150s

and 1160s. The "common law" was the law that emerged as "common" throughout the realm (as distinct from the various legal codes that preceded it, such as Mercian law, the Danelaw and the law of Wessex) as the king's judges followed each other's decisions to create a unified common law throughout England. The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions that were based in tradition, custom and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence, and as developing the body of law recognizing and regulating contracts. The type of procedure practiced in common law courts is known as the adversarial system; this is also a development of the common law.

Medieval English common law

In the late 800s, Alfred the Great assembled the Doom book (not to be confused with the more-famous Domesday Book from 200 years later), which collected the existing laws of Kent, Wessex, and Mercia, and attempted to blend in the Mosaic code, Christian principles, and old Germanic customs. Before the Norman conquest in 1066, justice was administered primarily by what is today known as the county courts (the modern "counties" were referred to as "Shires" in pre-Norman times), presided by the diocesan bishop and the sheriff, exercising both ecclesiastical and civil jurisdiction. Trial by jury began in these courts.[44][citation
needed]

In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies and reinstating a jury system citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today's civil and criminal court systems. Henry II developed the practice of sending judges from his own central court to hear the various disputes throughout the country. His judges would resolve disputes on an ad hoc basis according to what they interpreted the customs to be. The king's judges would then return to London and often discuss their cases and the decisions they made with the other judges. These decisions would be recorded and filed. In time, a rule, known as stare decisis (also commonly known as precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge; he was required to adopt the earlier judge's interpretation of the law and apply the same principles promulgated by that earlier judge if the two cases had similar facts to one another. Once judges began to regard each other's decisions to be binding precedent, the pre-Norman system of local customs and law varying in each locality was replaced by a system that was (at least in theory, though not always in practice) common throughout the whole country, hence the name "common law." Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously with Thomas Becket, the Archbishop of Canterbury. Eventually, Becket was murdered inside Canterbury Cathedral by four knights who believed themselves to be acting on Henry's behalf. Whether Henry actually intended to bring about the assassination of Becket is debatable, but there is no question that at the time of the murder, the two men were embroiled in a bitter dispute regarding the power of Royal Courts to exercise jurisdiction over former clergymen. The murder of the Archbishop gave rise to a wave of popular outrage against the King. Henry was forced to repeal the disputed laws and to abandon his efforts to hold church members accountable for secular crimes (see also Constitutions of Clarendon).

Judge-made common law operated as the primary source of law for several hundred years, before Parliament acquired legislative powers to create statutory law. It is important to understand that common law is the older and more traditional source of law, and legislative power is simply a layer applied on top of the older common law foundation. Since the 12th century, courts have had parallel and co-equal authority to make law -- "legislating from the bench" is a traditional and essential function of courts, which was carried over into the U.S. system as an essential component of the "judicial power" specified by Article III of the U.S. constitution. Justice Oliver Wendell Holmes, Jr. observed in 1917 that "judges do and must legislate." There are legitimate debates on how the powers of courts and legislatures should be balanced. However, a view that courts lack law-making power is historically inaccurate and constitutionally unsupportable.

The ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts. The general body of statutes and case law that governed England and the American colonies prior to the American Revolution. The principles and rules of action, embodied in case law rather than legislative enactments, applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals. A designation used to denote the opposite of statutory, equitable, or civil, for example, a common-law action. The common-law system prevails in England, the United States, and other countries colonized by England. It is distinct from the civil-law system, which predominates in Europe and in areas colonized by France and Spain. The common-law system is used in all the states of the United States except Louisiana, where French Civil Law combined with English Criminal Law to form a hybrid system. The common-law system is also used in Canada, except in the Province of Quebec, where the French civil-law system prevails. Anglo-American common law traces its roots to the medieval idea that the law as handed down from the king's courts represented the common custom of the people. It evolved chiefly from three English Crown courts of the twelfth and thirteenth centuries: the Exchequer, the King's Bench, and the Common Pleas. These courts eventually assumed jurisdiction over disputes previously decided by local or manorial courts, such as baronial, admiral's (maritime), guild, and forest courts, whose jurisdiction was limited to specific geographic or subject matter areas. Equity courts, which were instituted to provide relief to litigants in cases where common-law relief was unavailable, also merged with common-law courts. This consolidation of jurisdiction over most legal disputes into several courts was the framework for the modern Anglo-American judicial system. Early common-law procedure was governed by a complex system of Pleading, under which only the offenses specified in authorized writs could be litigated. Complainants were required to satisfy all the specifications of a writ before they were allowed access to a common-law court. This system was replaced in England and in the United States during the mid-1800s. A streamlined, simplified form of pleading, known as Code Pleading or notice pleading, was instituted. Code pleading requires only a plain, factual statement of the dispute by the parties and leaves the determination of issues to the court. Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Where a statute governs the dispute, judicial interpretation of that statute determines how the law applies. Common-law judges rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. Common-law judges find the grounds for their decisions in law reports, which contain decisions of past controversies. Under the doctrine of Stare Decisis, common-law judges are obliged to adhere to previously decided cases, or precedents, where the facts are substantially the same. A court's decision is binding authority for similar cases decided by the same court or by lower courts within the same jurisdiction. The decision is not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be considered as persuasive authority.

Because common-law decisions deal with everyday situations as they occur, social changes, inventions, and discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in a CASE OF FIRST IMPRESSION (previously undetermined legal issue). The common-law system allows judges to look to other jurisdictions or to draw upon past or present judicial experience for analogies to help in making a decision. This flexibility allows common law to deal with changes that lead to unanticipated controversies. At the same time, stare decisis provides certainty, uniformity, and predictability and makes for a stable legal environment. Under a common-law system, disputes are settled through an adversarial exchange of arguments and evidence. Both parties present their cases before a neutral fact finder, either a judge or a jury. The judge or jury evaluates the evidence, applies the appropriate law to the facts, and renders a judgment in favor of one of the parties. Following the decision, either party may appeal the decision to a higher court. Appellate courts in a common-law system may review only findings of law, not determinations of fact. Under common law, all citizens, including the highest-ranking officials of the government, are subject to the same set of laws, and the exercise of government power is limited by those laws. The judiciary may review legislation, but only to determine whether it conforms to constitutional requirements.

Medieval Life - Feudalism

The Feudal System was introduced to England following the invasion and conquest of the country by William I (The Conqueror). The system had been used in France by the Normans from the time they first settled there in about 900AD. It was a simple, but effective system, where all land was owned by the King. One quarter was kept by the King as his personal property, some was given to the church and the rest was leased out under strict controls. A simple plan showing how the Feudal System works Click on the yellow boxes to find out more information

The King
The King was in complete control under the Feudal System. He owned all the land in the country and decided who he would lease land to. He therefore only allowed those men he could trust to lease land from him. However, before they were given any land they had to swear an oath to remain faithful to the King at all times. The men who leased land from the King were known as Barons, they were wealthy, powerful and had complete control of the land they leased from the King.

Barons
Barons leased land from the King which was known as a manor. They were known as the Lord of the Manor and were in complete control of this land. They established their own system of justice, minted their own money and set their own taxes. In return for the land they had been given by the King, the Barons had to serve on the royal council, pay rent and provide the King with Knights for military service when he demanded it. They also had to provide lodging and food for the King and his court when they travelled around the country. The Barons kept as much of their land as they wished for their own use, then divided the rest among their Knights. Barons were very rich.

Knights
Knights were given land by a Baron in return for military service when demanded by the King. They also had to protect the Baron and his family, as well as the Manor, from attack. The Knights kept as much of the land as they wished for their own personal use and distributed the rest to villeins (serfs). Although not as rich as the Barons, Knights were quite wealthy.

Villeins
Villeins, sometimes known as serfs, were given land by Knights. They had to provide the Knight with free labour, food and service whenever it was demanded. Villeins had no rights. They were not allowed to leave the Manor and had to ask their Lord's permission before they could marry. Villeins were poor.

Feudalism?
The economy of England had been expanding for at least a century before the Norman conquest, and was characterised by growing markets and sprawling towns. By the 12th century, one of the ways in which English writers disparaged other peoples, notably the Welsh and Irish, was to depict their economies as primitive, as lacking markets, exchange and towns. At the same time, kings and lords outside England deliberately sought to stimulate the wealth of their countries, as can be most clearly seen by the introduction of coinage and the establishment of boroughs by David I of Scotland and his successors. The Domesday Book shows 11 leading members of the aristocracy held a quarter of the realm. Within such an economy, there was clearly room for men to rise by increasing their wealth. At the same time, it remained a notably hierarchic society, and the process of conquest itself strengthened the role of lordship. The Domesday Book, the product of William I's great survey of his realm in 1086, shows that the 11 leading members of the aristocracy held about a quarter of the realm. Another quarter was in the hands of fewer than 200 other aristocrats. These nobles had received their lands by royal grant, and in turn gave some of their lands to their own followers. This form of landholding is often regarded as a key element of a 'feudal' system - a form of social organisation once routinely held to have been introduced by the Normans in 1066. In recent years there has been considerable debate about the problems arising from the use of the term 'feudal', a debate wittily foreseen by the great Victorian historian, FW Maitland, who said: 'Feudalism is a useful word, and will cover a multitude of ignorances.' Nevertheless, whatever the wider problems of writing about 'feudalism', the process of Norman conquest and settlement did tie a variety of types of lordship closely together - regarding protection, service, and jurisdiction and linked them to the bond of land tenure, the holding of what men at the time referred to as a 'feudum' or 'fief'. The strength of lordship could result in royal weakness and the break-up of large scale political control. This happened in England during the civil war of the reign of Stephen, 1135 - 1154. Yet it would be wrong to see aristocracy and king, lordship and kingship as necessarily opposed. Kings and lords often regarded one another as natural companions, engaged in a mutually beneficial relationship. In addition, in England both kings and aristocrats continued to operate in political and judicial arenas other than those defined by lordship. Most notable amongst these were the counties or shires that the Normans inherited from the Anglo-Saxons.

The events leading up to Magna Carta

In 1209, John had been excommunicated in a dispute over the appointment of the Archbishop of Canterbury. He had used this as an excuse to confiscate church property and sell it back to his bishops at a profit. Part of the money raised by these exactions was used to create a fledgling English Navy. John had used this to invade Ireland in 1210, and on 30 May 1213, the Earl of Salisbury destroyed a French armada poised to invade the British Isles at Damme.

John patched up a truce and retreated back to England, but once again he was tainted by the stain of cowardice. However, it could also be used by his barons to justify their lack of support for his continental ventures. This delayed John's return to the continent until 1214, but following the success at Damme, John was able to launch an invasion of Poitou. Once again, the Lusignans were pivotal. They were persuaded to switch allegiance to John, but at the critical point in the campaign, they refused to fight. John patched up a truce and retreated back to England, but once again he was tainted by the stain of cowardice through little fault of his own.

The rebels gather

This gave the discontented barony their opportunity. They chose as their leader the East Anglian baron, Robert FitzWalter, who styled himself 'Marshal of the Host of God and the Holy Church'. The rebels declared against the king on 3 May 1215. From the start, they were a minority movement, as their choice of leader illustrates. FitzWalter was a somewhat unsavoury character with a series of grudges against John and a history of disaffection. He also had little regard for law or custom. In a quarrel over property rights with St Albans, he had resorted to violence and only went to the law after this failed. Once when John tried his son-in-law for murder, FitzWalter had turned up at court with 500 armed knights. He had been prominent in the plots against John in 1212, and saw this as another means for him to strike at the king. Other barons in the lists had similarly disreputable histories. By contrast, most of the barony simply did not want to get involved. Few of them declared for the king, but among those that did was William Marshal. His son joined the rebels, and this seems to have been the solution adopted by many baronial families. The rebels declared against the king on 3 May 1215. Ironically, their demands were based upon the so-called 'Unknown Charter' developed from the laws of Henry I. In their efforts to break away from the harsh Angevin rgime created by Henry II, they were harking back to the same 'Golden Age' that he had used to justify his actions. Their attempts to besiege Northampton Castle met with failure, but they scored a great coup when London opened its gates to them on 17 May (prompted in part by FitzWalter's castellany of Baynard's Castle in London itself). John havered, engaging in protracted negotiations. It was these that eventually led to the signing of Magna Carta at Runnymede in June 1215.

Magna Carta
Magna Carta should not be seen as a sign of surrender. In John's mind, it was only ever a stalling action, intended to demonstrate his reasonableness to the undecided baronial majority in the run-up to inevitable hostilities. It was a bargaining chip: nothing more. By November 1215, John had the rebels' backs to the wall. It probably meant little more to the rebels either, and the fact that they reneged on their agreement to surrender London after the signing demonstrates their disdain of the Runnymede proceedings. Still, the articles of the charter show that John had pushed his barony too far.

After an opening chapter guaranteeing the rights of the Church, the next 15 chapters were provisions designed to curb the king's exploitation of loopholes in feudal custom: limiting scutages and relief payments, and banning the abuses of privilege common in wardship. A further ten chapters dealt with finances, and another important block confirmed people's rights under the Common Law. It is these latter that have been seen as crucial, as they subjected the king to the law of the land for the first time in Britain's history, and this clause is the only one that remains on the statute books today. Finally, they sought to ensure that the king carried out his promises, safeguarded the rebels from any comebacks, demanded that he fire his hated mercenary captains and tied the king to a council of 25 members in an effort to ensure his co-operation. It was doomed to failure. Magna Carta lasted less than three months. By November 1215, John had the rebels' backs to the wall. He had recaptured Rochester Castle (which had been surrendered to them in September), and was poised to strike at London. The rebels, for their part, had offered the crown of England to Philip's son, Prince Louis of France, and he hurried reinforcements into London. John failed to grasp the nettle. Instead of striking at London in one final, decisive blow, he took the percentage option and began ravaging the rebels' heartlands. This gave Louis time to muster an army, and on 22 May 1216, he landed at Sandwich. John had been ready to receive them, but overnight his navy was scattered by a storm and his supporters, unwilling to trust his largely mercenary force, advocated retreat. Once again, John played the percentages and withdrew.

Death of John
It was one withdrawal too many. Disenchanted by the perceived cowardice of their king, fully two thirds of the English barony threw in their lot with Louis. John was harried northwards, and it is during these dark days that the celebrated incident on the Wash occurred, where he lost his entire treasury and his collection of jewellery to the sea. His death pulled the rug out from under the feet of Prince Louis. At this point, the fate of Britain hung in the balance. If John failed, not only would he have lost the Angevin Empire, but the kingdom of England would have fallen into French hands. It would have been the Norman Conquest all over again. Yet in a pathetic twist of fate, John's final act was the ultimate percentage play. He contracted dysentery as a result of over-indulgence and died during the night of 18 October 1216. His death pulled the rug out from under the feet of Prince Louis. With John out of the way, the regency council, led by William Marshal, declared John's son as king Henry III and reissued Magna Carta, removing a major part of the rebels' platform. All those barons who had been prepared to oppose John now flocked to his son's standard, and the conflict shifted from a civil war over baronial rights to a war of resistance against foreign invasion. Louis was defeated at Lincoln and Sandwich, by land and sea, and agreed to withdraw in September 1217. It was the final ironic twist in the story of Henry II and his sons. By their own actions, they had won and lost an empire; and by his death, John saved the kingdom of England.