English common law originated in the early Middle Ages in the decisions of local courts, which applied what Blackstone called “the custom of the realm from time immemorial” and practical reason to everyday disputes with the aid of but few formal enactments. Until the late 19th century, English common law continued to be developed primarily by judges rather than legislators.
The common law of England is in fact largely a Norman creation. The Anglo-Saxons, especially after the accession of Alfred the Great (871), developed a body of rules resembling those being used by the Teutonic peoples of northern Europe. Local customs governed most matters, while the church played a large part in government. The concept of crimes originated in this era, but they were treated as wrongs for which compensation was made to the victim.
The Norman Conquest of 1066 brought a practical end to the Saxon laws, except for some local customs. All of the land was allocated to Norman feudal vassals of the king. Serious wrongs were regarded mainly as public crimes rather than as personal matters, and the perpetrators were punished by death and forfeitures of property. Government was centralized, a bureaucracy built up, and written records maintained. Royal officials roamed the country, inquiring into the administration of justice. Church and state were separate and had their own law and court systems. This led to centuries of rivalry over jurisdiction, especially since appeals from church courts, before the Reformation, could be taken to Rome. Some elements of Saxon practice lingered, including trial by ordeal (by burning the hand, for example), which was retained until 1215. Outlawry, a Saxon procedure whereby a fugitive was placed outside the protection of the law, was retained for centuries to deal with people who fled from justice. Gradually, however, new procedures took the place of these crude devices.
The Normans spoke French and had developed a customary law in Normandy. They had no professional lawyers or judges; instead, they used “clerks,” or literate clergymen, to act as administrators. Some of the clergy were familiar with Roman law and the canon law of the Christian Church. Canon law was adopted by the English church, but the Normans resisted any attempt to introduce Roman law, which was applied only to certain claims under wills in the church courts, to marine disputes in the admiralty courts from the 14th century, and to military law. Norman custom was not simply transplanted to England, and a new body of rules, based on local conditions, grew up.
The unity and consistency of the common law were promoted by the early dominant position acquired by the royal courts. A single royal court, the King's Court (Curia Regis), was set up for most of the country at Westminster, near London. Whereas the earlier Saxon witan, or king's council, dealt only with great affairs of state, the new Norman court assumed wide judicial powers. Its judges (clergy and statesmen) “declared” the common law.
This early centralization also removed the need for England to import a single advanced foreign system of law, a need that led to the reception of Roman law in Europe after the decline of feudalism. The expression common law, devised to distinguish the general law from local or group customs and privileges, came to suggest to citizens a universal law, founded on reason and superior in type.
Edward I has been called the English Justinian because his enactments had such an important influence on the law of the Middle Ages. Edward's civil legislation, which amended the unwritten common law, remained for centuries as the basic statute law. It was supplemented by masses of specialized statutes that were passed to meet temporary problems.
In modern times the statutes issued prior to 1285 are sometimes treated as common law rather than statute law. This is because these laws tended to restate existing law or give it a more detailed expression. They explained what the law was, but they did not make an entirely new law; some authorities, in fact, doubted whether governments had the right to change ancient customs at all. In addition, judges did not always adhere closely to the words of the statute but tried to interpret it as part of the general law on the subject. Prior to the rise of the House of Commons in the 13th century, it also was difficult to distinguish acts of Parliament from the less binding decisions or resolutions of the royal council, the executive authority. Some statutes were passed but never were put into force, while others seem to have been quietly ignored.
One of the accusations reportedly made against Thomas Cardinal Wolsey, who fell from favour in 1529, was that he planned to introduce Roman law into England; Wolsey did appoint many clergy to the Council of the North and as justices of the peace. The 19th-century English legal historian F.W. Maitland discussed this legal crisis in a famous essay on English law and the Renaissance. Maitland ascribed the survival of the common law, in part, to the solid front presented by the Inns of Court, which trained lawyers practically and not theoretically. The English law tradition did not depend on abstract scholarly commentaries but on detailed judicial rulings about specific points of law arising in practice.
