The term “common law” is used in English legal discussion in four senses: as a general term for the whole law developed in England and contrasted with the Civil Law of the Continent and any other national or supernatural law; as a term in which the law of all the English courts is contrasted with the law created by statutes; as a term in which the law of the four royal courts at Wesminster is contrasted with that of other English courts; and as a term in which the law of the three oldest courts at Westminster (Exchequeer, Common Pleas, and King’s Bench) is contrasted with the law of the Chancery.
It is the last sense which will be used in the present discussion unless one of the others is indicated. It is an error, based on pseudohistorical claims involved in the seventeenth-century struggle against the Crown, to consider common law as the direct continuation of the old Anglo-Saxon law.
Properly speaking, there was no “law of England” before the Norman Conquest of 1066. There were three general groups of traditional law, the law of the West Saxons, the law of the Mercians, and the law of the Danes (the Danelaw).
Within and outside of these larger groups, there were innumerable local customs as well as privileged boroughs and crafts, all of which had their own law and courts. The clergy throughout the realm was governed by canon law administered in the ecclesiastical courts (Courts Christian), although before the Conquest the bishop often sat in the secular court as well.
The feudal law, with its system of manorial courts, was just beginning to be established in England in the generation before the Conquest, particularly under the Dane Canute.
William I the Conqueror introduced administrative forms and used the Norman institution of the sworn inquest to establish the great survey known as the Domesday Book. He strengthened the feudal courts and made a determined effort to separate the ecclesiastical and secular jurisdictions, but it is not till after 1100, under Henry I, that the common law may be considered as having begun.
General law grew out of the differentiation of the curia regis (which was, at the same time, the household and the administrative organ of the Norman and Angevin kings) into a system of separate royal courts, each developing its own rules of substance and procedure.
At first this new royal law made no pretense of displacing the existing bodies of law and custom already mentioned. The first of these specialized royal courts was the Exchequer, which was set up as a place where the royal officials accounted to the king for what was due him both as feudal lord or hundreds of manors and as overlord of all feudel estates within England.
The method of accounting and the determination of controversies in connection with the royal claims followed methods of their own.
Besides establishing a separate administration of the royal estate, Henry detached members of his curia (nearly all clerical in status, since education in the necessary skills was likely to be confined to the clergy) to do justice in his name on circuits throughout England.
The king’s justice was based on the concept of the king’s “peace,” that is, the protection he offered directly to his immediate vassals as well as to all persons found in places where his jurisdication was paramount, such as the king’s highway and the seacoast.
But the king’s peace could be invoked by persons who failed to get justice in the courts to which they belonged, and it was in connection with these persons that much of the struggle between the Crown and the great feudatories took place.