The Basic Structure of English Justice and Common Law : An Introduction

N.B. All images are from the manual of the Lord Chief Justice of the King’s Bench, unless otherwise noted. The author was research assistant to Archibald Cox and much of his work focussed on decoding the meaning of laws of antiquity to inform present contexts.

Common law largely is regarded as decisional authority, but also includes statutes, many of which were based on legal precedent. However common law’s true scope is even more expansive.

The idea behind codification of common law was that codification would provide equality, accessibility, and continuity. It certainly also had to do with Parliament wanting to preserve its own relevance in relation to courts. Competition of this type generally worked out well for the people of the land. I wrote a manual on the law of the right to petition and the constellation of types of petitioning-rights are jaw-dropping and awe inspiring. There I trace out the forces at work that made it possible, but in this brief article I provide only one example: the concept of a private attorney general (a/k/a ‘the king’s proctor’ or ‘the lord protector of liberties’).

Increases in petitioners worked out well for Parliament in the middle-ages who often took petitions and passed them off as their own — a ready-made product ripe for rebranding and the accolades that went with it. Not to be undone by Parliament, the crown also made use of petitioners to bolster its authority vis-a-vis Parliament and to keep a check on his officers: Private petitioners frequently were highly motivated and better-informed than the crown’s officials for the simple reasons that they had ‘skin in the game,’ there were more of them, and their interests were such that they would be more likely than not to disclose deviations of law to the crown.

The right to petition was also the primary and indispensable engine for growing precedent in the vineyards of common law. As legal precedents accumulated over time, they were maintained, indexed, annotated and analyzed in the records of courts and parliament and documented in scholarly collections on case law, treatises, yearbooks, reports, and the like. The cottage-industry — literally — of legal scholarship was born. An authoritative legal treatise on common law — like the one I show below — is an essential component of common law: it is common law.

Common law traditions and the right to petition were popular among the people and logically were carried over into colonial America: ‘‘[W]e take it to be a clear principle that the common law in force at the emigration of our ancestors is deemed the birthright of the colonies unless so far as it is inapplicable to their situation or repugnant to their other rights and privileges.” Town of Pawlet v. Clark, 13 U.S. 292, 333 (1815).

“When the American colonies were first settled by our ancestors, it was held, as well by the settlers, as by the Judges and lawyers of England, that they brought hither, as a birth-right and inheritance; so much of the common law, as was applicable to their local situation, and change of circumstances.

But each colony judged for itself, what parts of the common law were applicable to its new condition; and in various modes, by Legislative acts, by Judicial decisions, or by constant usage, adopted some parts, and rejected others.

Hence, he who shall travel through the different States, will soon discover, that the whole of the common law of England has been no where introduced; that some States have rejected what others have adopted; and that there is, in short, a great and essential diversity; in the subjects to which the common law is applied, as well as in the extent of its application.

The common law, therefore, of one State, is not the common law of another; but the common law of England, is the law of each State, so far as each state has adopted it; and it results from that position, connected with the Judicial act, that the common law will always apply to suits between citizen and citizen, whether they are instituted in a Federal, or State, Court.”

— United States v. Worrall, 2 U.S. 384, 395 (1798).

So, English common law generally formed the foundation of the American colonial experience and it was added to by American common law.

We begin our journey by describing the outline and features of English justice.

• Two types of courts: “Of-Record” and “Not-of-Record.”

This article provides the historical origin of the distinction: S. E. Thorne, Notes on Courts of Record in England, 40 W. Va. L. Rev. (1934). There were many variaties of courts of record and not-of-record.

Just as there were two types of courts; there were also two types of judicial tenure: at pleasure of the King or tenure contingent upon good behavior.

• A word about the good behavior required of judges.

• Below: The records of Parliament showing that King William IV removed a judge of the High Court for two acts of petty self-dealing (petty-corruption). This was not an impeachment or an “at pleasure” removal — this is a breach of the duty of good behaviour. The complaint was initiated by private parties to the Commissioners of Justice in Ireland, and forwarded to the House of Commons for investigation, and the King’s answer was reported in the House of Lords. Here one must remember that private petitions were often passed-around in this fashion.

As shown above: Sir Jonah Barrington, a judge of the high court, was alleged to have misappropriated money paid into the Admiralty Court of Ireland. This money pertained to the sale of various derelicts, including the “Nancy” and the “Redstrand.” An ad hoc select committee ultimately agreed to hear the matter as the complaint had changed hands several times. The judge refused to participate. A committee report added to the complaint that the judge was, “unfit and would be of bad example that he should continue to hold the said office. We therefore humbly pray Your Majesty that Your Majesty will be pleased to remove Sir Jonah Barrington from the office he holds, Judge of the High Court in Admiralty in Ireland….” The message was plain: Where a judicial officer has a legal duty to ethics, he may not sit mute in the face of an allegation of misfeasance. The crown replied: “I cannot but regret the circumstances which had led to this address. I will give directions that Sir Jonah Barrington be removed from the office he holds of Judge of the High Court of Admiralty in Ireland.”

Interestingly, this was one of the first acts of the new king, William IV, who acceded to the throne on June 26, 1830. The king had been an officer and knew of lapses in ethics from experience, so it hardly comes as a surprise that he acted on a private petition (even as it had been passed around in the Parliament). The action taken was pursuant to Article 7 of the Act of Settlement. Petty corruption clearly constituted bad behaviour and reasonable grounds for forfeiture on the qualification to hold office of trust or profit. Admission by silence was also a key feature. This was not an impeachment — as impeachments largely were parliamentary affairs.

It should be noted that there has been some confusion in American law concerning the judicial duty of good behavior, but this author is not confused. American legal history shows John Adams bitterly complained that, “A power without a check is always unsafe, and in some future time may introduce an absolute government into America. The judges of the land here do not hold their commissions during good behavior….” (John Adams’ Letter to William Tudor, 7 March, 1819.)

Any notion that good behavior requirement was a hollow one at common law greatly distorts essential history and precedent. Unfortunately, that frequently is done as Professor Raoul Berger once reminded me, so I sought to find good examples.

As stated in Dimes v. Grand Junction Canal, 3 H.L.C. 759, [10 Eng. Rep. 301] (House of Lords 1852): “[I]t is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred.[ ] And that is not to be confined to a cause in which he is a party,[ ] but applied [ ] to a cause in which he has an interest . . . . This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest but to avoid the appearance [ ] of labouring under such an influence.” Id. at 793–94, [10 Eng. Rep. at 315]. cf. Federalist №10 (Madison) (“No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time . . . . ”).

Such a bluntly stated rebuke of checks and balances (“This will be a lesson to all inferior tribunals ….”) is hard to come by in modern jurisprudence. In many respects, modern law has been regressive in this regard.

• The Three Tiers for ‘Courts-Of-Record.’

1. Supreme Court (King and Both Houses of Parliament);

2. Superior Courts (two types: More-Principal and Less-Principal);

• More-Principal (courts of the House of Lords).

3. Inferior Courts.

• Most Courts Were Courts-Not-of-Record.

Judges of courts-not-of-record were subject to civil damages suits in actions for trespasses against rights. Even the Inferior Courts (that were courts “of record”) were observed to commonly infringe upon basic rights and showed more instances of bias and partiality. That caused County Courts to review the conduct of Inferior Courts with great frequency (that is, they gave “a pretty quick ear to writs of false judgement”).

• Assize Courts (the criminal courts until 1971).

Assize Courts heard both civil and criminal jurisdiction, but most of their work was in handling criminal cases. The Assize Courts heard the most serious cases. They started off as hearing property disputes, but transformed into a predominantly criminal court system, operating in England and Wales until 1971. Assize Courts were periodic courts and its justices travelled to hear cases involving: homicide; theft; witchcraft; recusancy; highway robbery; rape; assault; vagrancy; trespass; coining; forgery; and infanticide.

• Preventing Bias, Improper Influence, and Improper Interests.

Judges of the Assize Courts were prevented from hearing cases where they born or lived as a hedge against bias, improper influence, improper interests, and corruption.

The schedule below shows seven circuits (at the time: 1909) and hearing dates for the Autumn Assizes.

• The modern structure of courts in the United Kingdom.

• All Must Stand Trial Even As They Conduct One

The English system was not based on trusting what court officers did. It was based on openness, transparency and verification.

All was to be done in “open court.”

The judge was to conduct the trial before the general public so that “partiality and injustice will be evidence to all bystanders” and either party could demand a bill of exception from the judge so that review may be sought as to the competence of the proof, the correct interpretation of law, and the fairness of the judge. That is, the judge was in a certain sense to be on trial as he conducted one.

The honesty and recollection of witnesses was to be tested in public. Private testimony was observed to bring with it injustice, faulty evidence and fraud.

Cross-examination was a part of the fact-finding process.

Records were to be scrutinized and open — here the Chief Justice warns of “crafty clerks, commissioner[s], or examiner[s].”

The jury’s duty was to help the judge separate fact from fiction and the judge’s duty was to make sure the jury understood the law.

The system was designed to arrive at the discovery of factual truth and even-handed application of law.

• The Value of Precedent.

Common law was law, but out the respect for the crown and Parliament was deemed a lesser form of law. The ideas of legal philosophers and theorists were ranked just below common law (as secondary authority). Nevertheless, common law sought to bring congruity and consonance to law (equality), unless vetoed by the King or Parliament.

• The hierarchy of law.

1. King and Parliament
2. Common Law
3. Secondary Sources (legal philosophers, scholars, etc.)

• Purpose of Common Law.

One of the purposes of Common Law was to correct insensible variations (inconsistencies) in law that were produced by exigencies, conveniences and error over time. The goal was even-handed justice.

• Common Law Also Includes Statutory and Customary Laws.

Sometimes common law is referred to as “judge-made law,” but it should be noted that it includes customary law derived from English statutory law that could no longer be referenced due to lost legislative and royal records predating Henry III.

• A mixture of laws.

Common law is a “mixture of laws” — derived from various secular, religious, and ethnic, and philosophical sources, traditions and practices to mark a consensus point and center of balance among all of the subjects of the realm.

• The problem of bad judges and jurists.

In shaping a law that was common to the kingdom — due to the “ignorance of the judges” — there sometimes developed unacceptable customs, rules, forms of proceeding, uncertainty and variety in the same law from county-to-county. Some bishops, barons, freeholders, and judges who should have attended county courts and engaged in the “study of English law, as great men do” had neglected their duty. Here that is being point out. Again, critique so bluntly-stated would be a rarity these days.

• The King Attempted to Remedy Mischief Among Judges

During the reign of William the Conqueror (Wm. I, 1066 - 1087), the King became aware that his judges had become corrupt: Bias and partiality infected judges due to family ties, tenure, factionalism and personal interests. The King and Chief Justice found it difficult to remedy cases of false judgments, so six circuits were created with experienced three-judge panels to bring uniformity to the law and stamp-out corruption among the judiciary.

• Court records.

By the time of Henry II, a premium was placed on making court records and pleadings more orderly.

• Qualities relevant to becoming a judge at common law.

The basic qualities were, learning, knowledge and experience. An emphasis on training sought to bring uniformity and ethics to the law. The people of the realm also frequently became “proctors of the crown” or ‘lord protectors of settled liberties’ — this is what we today would term a “private attorney general.” The practice permitted the crown to maintain a system of checks and balances against misbehaving officers (of which there was no shortage of as shown in a few examples above).

• How common law decisions were reached.

There are three ways common law decisions were supposed to made:

(1) directly;

(2) by logical extension or inference; or

(3) by making a new rule unless the issue has previously been decided to maintain equality, even-handedness, continuity and predictability.

• Trials By Jury Were the Custom.

• Common Law During the American Colonial Era.

Common law is the basis of the laws of the states which were originally colonies of England. The tradition was imported by the colonists and a default standard, so far as it was applicable to their institutions and circumstances. See United States v. Worrall, (2 U. S. 2 Dall. 384, 1 L. ed. 425, Fed. Cas. №16,766.) 2 U.S. 384, 394 (1798). Prior to the Revolutionary War the common law was in force in all of the colonies. Each colony, subject to its needs and limitations determined its own system of local or municipal law. Each adopted so much of the common law of England as deemed suited to the wants and necessities of its people.

“The colonists who established the English colonies in this country, undoubtedly brought with them the common and statute laws of England, as they stood at the time of their emigration, so far as they were applicable to the situation and local circumstances of the colony.” United States v. Reid, 53 U.S. 361, 363–364 (1851) (noting trial by jury is of English origin, was regarded as a right of inestimable value, and the best and only security for life, liberty, and property). “The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles and claimed it as their birthright, but they brought with them and adopted only that portion which was applicable to their situation.” Van Ness v. Pacard, 27 U.S. 137, 144 (1829). ‘‘[W]e take it to be a clear principle that the common law in force at the emigration of our ancestors is deemed the birthright of the colonies unless so far as it is inapplicable to their situation or repugnant to their other rights and privileges.” Town of Pawlet v. Clark, 13 U.S. 292, 333 (1815).

Declaration of Colonial Rights and Grievances, 1774.

Here we also provide a truncated and cleaned — up version of a statement of the value of common law to colonial America — the longer form appears immediately after.

“That the inhabitants of the English Colonies in North America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following Rights: …

[§ 5] That the respective colonies are entitled to the common law of England[;]

[§ 8] That they have a right peaceably to assemble, consider of their grievances, and petition the King; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal. …

[§ 6 ]; That they are entitled to the benefit of such of the English statutes as existed at the time of their colonization….

[§ 7][They] likewise entitled to all the immunities and privileges granted & confirmed to them by royal charters, or secured by their several codes of provincial laws. * * *

[W]e find many infringements and violations of the foregoing rights… which demonstrate a system formed to enslave America.”

— The Declaration of Colonial Rights and Grievances of 1774.

Long Form.

“That the inhabitants of the English Colonies in North America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following Rights:

1. [T]hey are entitled to life, liberty, & property, and they have never ceded to any sovereign power whatever, a right to dispose of either without their consent.
2. [A]ll the rights, liberties, and immunities of free and natural-born subjects, within the realm of England.
3. [T]hey by no means forfeited, surrendered, or lost any of those rights….
4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, … to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed. But, from the necessity of the case, and a regard to the mutual interest of both countries, we cheerfully consent to the operation of such acts of the British parliament, as are bona fide, restrained to the regulation of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members; excluding every idea of taxation, internal or external, for raising a revenue on the subjects in America, without their consent.
5. That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.
6. That they are entitled to the benefit of such of the English statutes as existed at the time of their colonization….
7. [They] likewise entitled to all the immunities and privileges granted & confirmed to them by royal charters, or secured by their several codes of provincial laws.
8. That they have a right peaceably to assemble, consider of their grievances, and petition the King; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.
9. That the keeping a Standing army in these colonies, in times of peace… is against law.
10. [T]hat the constituent branches of the legislature be independent of each other; that… legislative power …, during pleasure, by the crown, is unconstitutional, dangerous, and destructive to the freedom of American legislation.

[T]heir … rights and liberties; which cannot be legally taken from them, altered or abridged by any power whatever, without their own consent, by their representatives in their several provincial legislatures.

[W]e find many infringements and violations of the foregoing rights… which demonstrate a system formed to enslave America. *** ”

— Declaration of Colonial Rights and Grievances, 1774.

The Supreme Court’s modern approach.

“As with historical evidence generally, courts must be careful when assessing evidence concerning English common-law rights. The common law, of course, developed over time. Associated Gen. Contractors of Cal., Inc. v. Carpenters , 459 U.S. 519, 533, n. 28, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) ; see also Rogers v. Tennessee , 532 U.S. 451, 461, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001). And English common-law practices and understandings at any given time in history cannot be indiscriminately attributed to the Framers of our own Constitution. Even “the words of Magna Charta “ — foundational as they were to the rights of America’s forefathers — “stood for very different things at the time of the separation of the American Colonies from what they represented originally” in 1215. Hurtado v. California , 110 U.S. 516, 529, 4 S.Ct. 292, 28 L.Ed. 232 (1884). Sometimes, in interpreting our own Constitution, “it [is] better not to go too far back into antiquity for the best securities of our liberties,” Funk v. United States , 290 U.S. 371, 382, 54 S.Ct. 212, 78 L.Ed. 369 (1933), unless evidence shows that medieval law survived to become our Founders’ law. A long, unbroken line of common-law precedent stretching from Bracton to Blackstone is far more likely to be part of our law than a short-lived, 14th-century English practice.” N.Y.S. Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2136 (2022) (Thomas, J.)