Courts and the development of the common law

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The common law developed in England after the Norman conquest in 1066. Henry II is particularly credited with developing the common law, and the system in his time was organised as follows:

  • England was a feudal system, with the King giving land to the lords, who lease it to the peasants.
  • The lord solves disputes between his peasants according to his rules and customs. This is called manorial justice.
  • When manorial justice fails, one may turn to the royal justice system. It includes:
    • Itinerant justices - local justices who represent the royal system
    • Justices of Westminster - a group of administrators who sit at Westminster.
    • The King's court (curia regis) - the king and his council, who are the ultimate authority.
  • Older methods of determining whether someone is right or wrong included trial by ordeal, oath or battle. Those were gradually replaced by 'recognition' (trial by jury).
  • The Church had its own courts which operated according to canon law and dealt with matters like marriage, adultery and clerics.
    • The punishments of the Church courts were less severe and thus people tried to obtain the benefit of clergy (prove they are a cleric).
  • Women had little legal power. Their husbands acted for them.
  • Equity became an alternative system of law which provide remedy when justice and morality was not achieved by the common law courts. It was headed by the Lord Chancellor.
  • The concept of disturbing the 'King's Peace' arose - meaning that crimes are committed against society at large and thus the state prosecutes criminals.

This article is a topic within the subject Introducing Law & Justice.


Required Reading

Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 35-61.


[1] The common law only started developing after the Norman conquest in 1066. Before that:

  • The ancient Roman rule left very few traces on the legal system.
  • The Anglo-Saxons who immediately preceded the Normans left the writ, the sheriff, and the notion that king and people were all subject to the law and the concept of the King’s Peace.
  • The system was completely revised when William the Conqueror invaded in 1066. William is known for being an unusual ruler and organisational genius.
  • One example of this is his Domesday book - officials would come around and record in a book everything that everyone owned, so the Crown could collect taxes appropriately.

The effect of the Norman conquest

[2] The effect of the Norman Conquest was profound, and involved a far greater emphasis on, and possible introduction of, the feudal system.

  • Feudalism is a system where there is a lord and his peasants. The peasants hold the land (lease) of the lord and owe him duties. In return the lord offers protection.
  • With the feudal system comes manorial justice - the lord is the judge in his land and he determines the legal disputes of the peasants however he sees fit.
  • The King is the ultimate owner in the feudal pyramid, because all of the land is ultimately his, and the lords hold it of him.
  • Because land was held of William he kept control of administration, politics, military, marriage and succession.

Court system in early Norman times

[3] The court was a curia regis (the king’s court) which was basically the group of officials and advisers which the king had with him at the time (the king used to travel).

  • The curia regis also operated in the absence of the king but by his authority.
  • William delegated work to the following officials:
    • The Justiciar was a regent to act in his absence.
    • Lord Chancellor was in charge of the secretarial staff (he would eventually grow in power).
    • Barons of the Exchequer transacted the king's financial and legal business.
    • Sheriffs were a sort of local judges.
  • William’s insistence that he took England lawfully rather than by conquest and that he inherited Edward the Confessor’s laws was later used by English common lawyers to argue that the common law had existed from time immemorial. (Note that this insistence can be compared to the Australian insistence that New South Wales was a 'settled' colony and not a 'conquered' one).
  • William did not make major changes to the actual law itself. Rather, Henry I and particularly Henry II were the main developers of common law.

The development of the royal justice system

[4] Ordinary justice was carried out by manorial courts which decided matters according to custom. Only when manorial dispute resolution had failed would one turn to the royal courts (this was rare). The system really developed during the reign of Henry II.

  • The creation of the Judges in 'Eyre' - traveling judges going around investigating places at regular intervals. They would examine sheriff’s accounts, coroner’s activities, payment of taxes etc, as well as judicial work.
  • Residents dreaded the Eyres, and even hid from them. After the number of complaints, Henry decided that five judges should stay at Westminster to hear complaints (justices of Westminster).
  • The royal justice system was given consistency by the fact that the same judges acted as itinerant judges/went on Eyre/sat at Westminster. Therefore a consistent set of principles and procedures such as common Law was able to develop. This gave people a security which they did not have from manorial courts, which all had different customs.
  • Later on, in 1215, the royal courts were:
    • The Exchequer - finance.
    • The King's bench - followed the king and heard matters like trespass and felonies that affected the King’s Peace.
    • The Court of Common Pleas - heard matters such as land disputes (had a monopoly over this) and trespass and recovery of property/debt. Heard the most cases.

Abbot Henry's story

[5] The royal court system is illustrated by Abbot Henry's story. For a detailed explanation of the story, see Abbot Henry's Story. Below is a short outline:

  • An ongoing dispute about a piece of land (particularly a marsh) caused Abbot Robert (and after his death, Abbot Henry) to undergo a variety of legal processes in the royal justice system. This included:
    • An appeal to the local itinerant justice.
    • An appeal to the justices at Westminster and the Exchequer.
    • The holding of a grand assize (a trial) which includes a 'recognition' (predecessor to trial by jury)
    • An appeal to the King himself (twice).
  • During the course of these procedures, there was use of a variety of writs and royal charters.

The story highlights some important aspects of the legal system of the time:

  • Failure to show up to a trial was an extremely serious crime which almost caused the Abbot to lose his land, despite having an express royal charter from the king. When he said he was sick, knights were sent to investigate.
  • Itinerant justices were an important part of the king’s control of England, while the justices at Westminster where more like administrators; they had less ability to decide on cases.
  • Money was very important in the legal system. Parties had to pay money to have something tried, and this was a way in which the king raised revenue.
  • The royal justice option consolidated loyalty to the king rather than to the immediate lord.

Trial by Jury

[6] The forms of proof in England were based on a belief that God would favour the just. Accordingly, it led to arbitrary methods of dispute resolution:

  • By oath - a witness would swear an oath that the accused was of good character. If he was not punished by God, he was considered as telling the truth. An oath was worth more if it was given be a person of higher rank (nobility).
  • By ordeal - there are different types of ordeals, but usually involved something like the accused having to put his hand in boiling water or hold a red-hot iron and then be bandaged. If there were still blisters three days later, he was guilty. Another type was throwing someone into water, and if he sinks, he is innocent and fished out, if he floats, he is guilty.
  • By battle (Normans only) - the parties fight, and the winner is judged to be the right one because God favoured him in the fight.

By 1215, the Church forbade the clergy to be involved in ordeals, and trial by battle was also observed to be a pretty arbitrary method of determining justice. Henry II and his councillors chose the “recognition” or jury as the preferred method of proof, which has remained one of the hallmarks of common law since then.

  • A jury consisted of 12 knights (the grand assize); in a land dispute they could be sent to view the land, consult neighbours and then give their verdict.
  • By the 1600s juries were expected to weigh up the evidence and come to a conclusion based on that evidence.
  • It should be noted that the use of a jury was instrumental in bringing about the concept of an organised trial. Because there was now so many parties, it made sense to have an organised trial at a certain time and date, rather than a series of meetings or communications as had been done before.

The Magna Carta

[7] The Magna Carta ('Great Charter') is a foundation of the English constitution and remains part of Australian law. Its purpose is to limit the arbitrary use of power.

  • The Crown was imposing excessive taxation and offended the barons, the church, traders, and landowners simultaneously. An uprising began.
  • King John (ruled after Richard) was forced to sign the document, demonstrating how even the king could be restrained. A new era began.
  • The phrase “No freeman shall be taken or/and imprisoned... except by the lawful judgment of his peers” was first written in the Magna Carta. Although it is thought now that it didn't purport to do so, it is now interpreted as a right to trial by jury.

Even in the modern age, people have attempted to rely on certain clauses of the Magna Carta. An example of this is Prisoners A-XX (Inclusive) v NSW:[8]

  • Prisoners were demanding that condoms be supplied to them; while they have already been deprived of their freedom, they are claiming this separate right to condoms. “We will sell to no man, we will not deny or defer any man either justice or right.”
  • However, it was decided that this did not “provide a statutory basis for saying that the denial by prison authorities of access by prisoners to condoms is unlawful,” as “the applications of modern standards to ancient practice has resulted in complete misapprehension.”
    • In other words, the link between something like not supplying condoms to prisoners and "we will not deny... justice or right" is simply too far - the framers of the Magna Carta did not at all mean that.

The Church

[9] The Church was closely tied to the law back in those days, because the vast majority of the people were deeply Christian. Since William did not want to be tied down by the Pope, he separated the courts into the spiritual (church) and temporal (non-church) courts. This established the Ecclesiastical courts (Church) which were part of the English legal system until 1857.

  • The ecclesiastical courts used canon law, which was derived partly from Roman/civil law, as taught at university.
    • Civil law and canon law used similar methodologies but different sources: Canon law was based on the Bible and Church statutes.
  • The ecclesiastical courts had jurisdiction in regards to marriage, divorce, legitimacy, passing of property to children, and punishment of mortal sin – e.g. adultery.
  • The ecclesiastical courts also tried to claim jurisdiction over any cases which involved clerics, violation of an oath or church property. This led to friction with the King.

Henry II wished to assert his supremacy with the Pope and did this by issuing the Constitutions of Clarendon in 1164, and appointing Thomas a'Becket as Archbishop of Canterbury (head of the church in England) in 1162. This was also aimed to end the jurisdictional issues with the ecclesiastical courts.

  • However, a'Becket opposed Henry’s claims of control over the ecclesiastical courts.
  • a'Becket was murdered by royalists in a church, and (fearing the wrath of God for the sin), Henry gave in to the church and renounced the parts of the Constitutions which offended them (which gave the royal courts the final say over clerics). Eventually it worked out that clerics would be tried by the canon courts for serious crimes, and royal courts for less important things.

It should be noted that the procedures of trial in the ecclesiastical courts were quite different:

  • The church courts looked far more like a modern court of law than other medieval courts.
  • They involved a single judge investigating the matter by comparing the evidence of witnesses, and applying rules of law found in a book.
  • Interestingly, the royal courts were often conducted by clerics with knowledge and experience of canon law, despite the massive differences between the two systems.
  • Benefit of clergy: If a convict could recite a passage from the psalter, they were considered “clergy” and thus could not be given the sometimes mandatory death sentence – it often became a way for judges to escape implementing a mandatory death sentence. This was only abolished in 1827 but was used by judges in the later 18th Century to send convicts to colonies rather than death.
  • Sanctuary and abjuration: Trial or confession resulted in an oath to ‘abjure the realm’ (leave the country, exile).


[10] Women did not have much power in those times; in a society that so valued land, women were normally only wives/daughters of landowners.

  • Until the Married Women’s Property Acts (UK 1870, Aust 1879), married women were classed as femes covert. This meant:
    • Everything she owned becomes her husband's during marriage.
    • Cannot make a will (bar one that applies to her paraphernalia such as clothing and personal ornaments).
    • Cannot sue or be sued.
    • Cannot enter a contract.
  • Cannot own property.
  • Basically, the woman lived only through her husband.
  • The only protection available to her was dower, which protected a widow by providing her with a life interest of a third of her husband’s land which he died possessing. The husband could not touch that part.
  • The only other protection available to married women was equity.


[11] When justice appeared not to be done by the royal courts of the common law, a litigant could turn to the courts of equity (or 'the Chancery'. Equity emerged as follows:

  • When people felt justice was not achieved by the courts (usually because of a legal technicality), they turned to the curia regis in hope that the king would help them because the law turned out to be unfair etc.
  • The curia regis was exercising royal power, and therefore could order pretty much anything.
  • After some time, the king delegated the function of hearing these appeals to the Lord Chancellor (therefore, the Chancery).
  • The Lord Chancellor's court of equity ran on the basis of conscience rather than the common law. It meant it did not abide by technicalities.
  • Truthfully, the Chancellor could not contradict the common law. However, the royal power allowed him flexibility to work around the common law judgment (leaving it intact) but still ensuring justice. This was done through orders, which, if not followed, resulted in being jailed for contempt.

This is illustrated in the story of the 'Conscience of Profyt':[12]

  • A man was dying and wanted to give his land to his wife. However, women could not inherit land.
  • He left it to three friends, who promised they will give it to his wife.
  • Instead, two sold it to the other (Thomas Profyt), and the other sold the entire land to someone else.
  • According to common law, there was nothing illegal about what they did, so the wife couldn't get help.
  • She turned to the Chancery, which ordered that it was against conscience for Profyt to keep the profits for his benefit. They must be given to the wife.

Equity in the law by M Chesterman

[13] The Lord Chancellor and the court of Equity acted in the name of morality and justice.

  • Issue a summons to the adversary requiring him to present his side of the case.
  • If the court felt that the petitioner’s claim to be valid, it would make an appropriate order. :*Such an order was addressed to the adversary’s conscience – that is it sought to compel him to do what good conscience (equity) required of him.
  • This began to evolve into a separate collection of legal principles, as the common Law courts’ capacity to devise new laws to keep pace with social change diminished throughout the 13th century.
  • The principles of equity thus changed significantly, as instead of ordering specific remedial measures in certain cases, it became more concerned with general substantiative rules/remedies to supplement the common law in matters where the latter system was insufficiently responsive to social change.
    • For example: the recognition and enforcement of “trusts” – the concept of a trustee holding land 'in trust' for someone else was not recognised by common law (ie, the trustee simply owned the land in common law), but was recognised (and enforced) by equity.
  • Equity took over many aspects of the administrations of wills and deceased estates, and developed provisions for relieving mortgagors from the total loss of their land which would occur under common law rules.
  • One of the greatest advantages of equity was the flexible range of remedies offered by the fact that it operated under royal authority. The most notable remedy was the 'injunction' - whereby a party must do something (or refrain from doing something) on pain of being jailed for contempt of court.
  • At the beginning, equity was very flexible and not really based on precedents. Eventually, it became more inclined to follow previous equity decisions and thus transformed into a system of laws similar to the common law. Nevertheless, it still aims to provide a corrective alternative to the rigid and technical rules of the common law, in in the interests of justice and good conscience.

Since equity was tried in a different court, litigants had to choose whether they will seek a remedy in the common law courts or the equity courts. Obviously this created great difficulties (especially because a lot of cases include both issues of equity and issues of common law).


[14] In Australia there is clear distinction between criminal and civil law.

  • Criminal: the action is carried by the state authority (usually the police), to determine whether a person is guilty of breaking the law of the state. Punishment is not intended to benefit the victim, but deter, reform and bring to justice the offender.
  • Civil: the action is carried by individuals against others. The state is a neutral arbiter which orders the wrongful party to compensate the wronged party.

The distinction was not always so clear – civil law ultimately still originated from the law of 'trespass' which was an offence against the King’s Peace as well as the injured plaintiff.

The Development of Crime by C R Jeffery

[15] In the time of Henry II, a system of writs, procedures and Common law arose. A new writ (of trespass) arose to replace trial by appeal. It allowed a litigant to collect damages, and placed the initiation of criminal trials in the hands of the King. The concept of the 'King's Peace' arose.

  • The King's Peace extended to everyone.
  • When one committed a crime, he was disturbing the King's Peace.
  • Thus, state replaced the wronged family or the lord as the prosecutor in every criminal case.
  • This occurred because serious crimes were no lo longer considered simply as regrettable torts which only required compensation by payment to the family, but as a crime against society at large to be prosecuted by the community through its chief.
    • The change of mind-set was largely due to the influences of the crusades and penetration of Roman (Civil) law into England.


Textbook refers to Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).

  1. Textbook, pp. 35-6
  2. Textbook, pp. 36-7
  3. H J Berman, Law and Revolution: The Formation of the Western Legal Tradition, Harvard University Press, Cambridge, Mass., 1983, p 440 in Textbook, pp. 37-8
  4. Textbook, pp. 43-4
  5. Textbook, pp. 39-42
  6. Textbook, pp. 44-6
  7. Textbook, pp. 47-48
  8. (1995) 38 NSWLR 622
  9. Textbook, pp. 51-53
  10. Textbook, pp. 54-5
  11. Textbook, pp. 55-6
  12. WP Baildon (ed), Select Cases in Chancery 1364-1470, Selden Soceity, Bernard Quaritch, London, 1896, Case 45 in Textbook, p. 56
  13. M Chesterman, 'Equity in the law' in P Troy (ed), A Just Society? George Allen & Unwin, 1981 in Textbook, pp. 56-8
  14. Textbook, p. 60
  15. C R Jeffery, 'The Development of Crime in Early English Soceity', in W Chambliss, Crime and the Legal Process, McGraw-Hill Book Co, Sydney 1969 in Textbook, p. 61
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