Instruct: Given a question, retrieve relevant documents that can help answer the question.
Query: Where did common law originate?
Common law is a term with historical origins in the legal system of England. It denotes, in the first place, the judge-made law that developed from the early Middle Ages as described in a work published at the end of the 19th century, "The History of English Law before the Time of Edward I", in which Pollock and Maitland expanded the work of Coke (17th century) and Blackstone (18th century). Specifically, the law developed in England's Court of Common Pleas and other common law courts, which became also the law of the colonies settled initially under the crown of England or, later, of the United Kingdom, in North America and elsewhere; and this law as further developed after those courts in England were reorganised by the Supreme Court of Judicature Acts passed in the 1870s, and developed independently, in the legal systems of the United States and other jurisdictions, after their independence from the United Kingdom, before and after the 1870s. The term is used, in the second place, to denote the law developed by those courts, in the same periods (pre-colonial, colonial and post-colonial), as distinct from within the jurisdiction, or former jurisdiction, of other courts in England: the Court of Chancery, the ecclesiastical courts, and the Admiralty court.
and many other generally English-speaking countries or Commonwealth countries (except the UK's Scotland, which is bijuridicial, and Malta). Essentially, every country that was colonised at some time by England, Great Britain, or the United Kingdom uses common law except those that were formerly colonised by other nations, such as Quebec (which follows the law of France in part), South Africa and Sri Lanka (which follow Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. Guyana and Saint Lucia have mixed Common Law and Civil Law systems.
Traditionally Oxford and Cambridge did not see common law as worthy of study, and included coursework in law only in the context of canon and civil law and for the purpose of the study of philosophy or history only. The apprenticeship programme for solicitors thus emerged, structured and governed by the same rules as the apprenticeship programmes for the trades. The training of solicitors by apprenticeship was formally established by an act of parliament in 1729. William Blackstone became the first lecturer in English common law at the University of Oxford in 1753, but the university did not establish the programme for the purpose of professional study, and the lectures were very philosophical and theoretical in nature. Blackstone insisted that the study of law should be university based, where concentration on foundational principles can be had, instead of concentration on detail and procedure had through apprenticeship and the Inns of Court.
In common law legal systems, precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great value on deciding cases according to consistent principled rules, so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained. The principle by which judges are bound to precedents is known as stare decisis. Common-law precedent is a third kind of law, on equal footing with statutory law (that is, statutes and codes enacted by legislative bodies) and delegated legislation (in U.K. parlance) or regulatory law (in U.S. parlance) (that is, regulations promulgated by executive branch agencies).
Both "civil" (also known as "Roman") and "common" law systems can be considered the most widespread in the world: civil law because it is the most widespread by landmass, and common law because it is employed by the greatest number of people.
The law of most of the states is based on the common law of England; the notable exception is Louisiana, whose civil law is largely based upon French and Spanish law. The passage of time has led to state courts and legislatures expanding, overruling, or modifying the common law; as a result, the laws of any given state invariably differ from the laws of its sister states. Thus, as noted above, the U.S. must be regarded as 50 "separate" systems of tort law, family law, property law, contract law, criminal law, and so on. (In addition, the District of Columbia and the federal territories also have their own separate legal systems analogous to state legal systems, although they do not enjoy state sovereignty.)
During the 15th century, the common law courts were challenged by the civil law and equity found in the Chancery and similar courts. These courts and legal methods were much faster than the common law courts, so lawyers and claimants flocked to them. This was perceived as a threat to the common law courts, for good reason; between 1460 and 1540, the business of the common law courts significantly dropped, while the Chancery's cases rose massively in number. In reaction to this, the Court of King's Bench developed its own, faster system, intent on winning cases back, and through procedures such as the Writ of Quominus and Bill of Middlesex acquired a wider jurisdiction. While this succeeded in forming an equilibrium between the old common law courts and the new courts, it was viewed with suspicion by the Common Pleas, who became highly reactionary to the changes the King's Bench attempted to introduce. When the King's Bench attempted to use the Bill of Middlesex to widen its jurisdiction, the Common Pleas became increasingly conservative in its attempts to avoid ceding cases. This was limited by the fact that the three Common Pleas prothonotaries could not agree on how to cut costs, leaving the court both expensive and of limited malleability while the King's Bench became faster, cheaper and more varied in its jurisdiction.
Examples of common law being replaced by statute or codified rule in the United States include criminal law (since 1812, U.S. federal courts and most but not all of the States have held that criminal law must be embodied in statute if the public is to have fair notice), commercial law (the Uniform Commercial Code in the early 1960s) and procedure (the Federal Rules of Civil Procedure in the 1930s and the Federal Rules of Evidence in the 1970s). But note that in each case, the statute sets the general principles, but the interstitial common law process determines the scope and application of the statute.
Yet, adoption of the common law in the newly-independent nation was not a foregone conclusion, and was controversial. Immediately after the American Revolution, there was widespread distrust and hostility to anything British, and the common law was no exception. Jeffersonians decried lawyers and their common law tradition as threats to the new republic. The Jeffersonians preferred a legislatively-enacted civil law under the control of the political process, rather than the common law developed by judges that—by design—were insulated from the political process. The Federalists believed that the common law was the birthright of Independence: after all, the natural rights to "life, liberty, and the pursuit of happiness" were the rights protected by common law. Even advocates for the common law approach noted that it was not an ideal fit for the newly-independent colonies: judges and lawyers alike were severely hindered by a lack of printed legal materials. Before Independence, the most comprehensive law libraries had been maintained by Tory lawyers, and those libraries vanished with the loyalist expatriation, and the ability to print books was limited. Lawyer (later president) John Adams complained that he "suffered very much for the want of books". To bootstrap this most basic need of a common law system—knowable, written law—in 1803, lawyers in Massachusetts donated their books to found a law library. A Jeffersonian newspaper criticized the library, as it would carry forward "all the old authorities practiced in England for centuries back ... whereby a new system of jurisprudence [will be founded] on the high monarchical system [to] become the Common Law of this Commonwealth... [The library] may hereafter have a very unsocial purpose."
Federal common law is a term of United States law used to describe common law that is developed by the federal courts, instead of by the courts of the various states. The United States is the only country to combine the creation of common law doctrines with a complete federalism, wherein the national supreme court has virtually no power to review state court decisions to determine whether the state courts have followed state laws. The High Court of Australia is sometimes said to have federal common law, but because all state and territorial courts are directly appealable to the High Court, this is indistinguishable from a general common law. In contrast, the United States Supreme Court has effectively barred the creation of federal common law in areas traditionally under the authority of state courts. Nevertheless, there are several areas where federal common law continues to govern.
The actual substance of English law was formally "received" into the United States in several ways. First, all U.S. states except Louisiana have enacted "reception statutes" which generally state that the common law of England (particularly judge-made law) is the law of the state to the extent that it is not repugnant to domestic law or indigenous conditions. Some reception statutes impose a specific cutoff date for reception, such as the date of a colony's founding, while others are deliberately vague. Thus, contemporary U.S. courts often cite pre-Revolution cases when discussing the evolution of an ancient judge-made common law principle into its modern form, such as the heightened duty of care traditionally imposed upon common carriers.
The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasions, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.
Although the exact legal implications of the judgement are unclear when analysed by lawyers, the judgement was generally taken at the time to have determined that slavery did not exist under English common law and was thus prohibited in England. The decision did not apply to the British overseas territories; by then, for example, the American colonies had established slavery by positive laws. Somersett's case became a significant part of the common law of slavery in the English-speaking world and it helped launch the movement to abolish slavery.
Commonwealth is a designation used by four of the 50 states of the United States in their full official state names: Kentucky, Massachusetts, Pennsylvania, and Virginia. Commonwealth is a traditional English term for a political community founded for the common good. Prior to the formation of the United States of America in 1776, all four were part of Great Britain's possessions along the Atlantic coast of North America. As such, they share a strong influence of English common law in some of their laws and institutions.
A reception statute is a statutory law adopted as a former British colony becomes independent, by which the new nation adopts (i.e. receives) pre-independence common law, to the extent not explicitly rejected by the legislative body or constitution of the new nation. Reception statutes generally consider the English common law dating prior to independence, and the precedent originating from it, as the default law, because of the importance of using an extensive and predictable body of law to govern the conduct of citizens and businesses in a new state. All U.S. states, with the partial exception of Louisiana, have either implemented reception statutes or adopted the common law by judicial opinion.
Northern Ireland law refers to the legal system of statute and common law operating in Northern Ireland since the partition of Ireland established Northern Ireland as a separate jurisdiction within the United Kingdom in 1921.
For the purposes of private international law the United Kingdom is divided into three distinct legal jurisdictions:Northern Ireland is a common law jurisdiction. Although its common law is similar to that in England and Wales, and partially derives from the same sources, there are some important differences in law and procedure between Northern Ireland and England and Wales. While influenced by English law, the Northern Ireland legal system is distinctive for a number of reasons: it has roots in Irish common law prior to Irish independence in 1921; following Irish independence, Northern Ireland became a devolved jurisdiction within the United Kingdom.
The state of New York, which also has a civil law history from its Dutch colonial days, began a codification of its law in the 19th century. The only part of this codification process that was considered complete is known as the Field Code applying to civil procedure. The original colony of New Netherland was settled by the Dutch and the law was also Dutch. When the English captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was recaptured by the Dutch. When the English finally regained control of New Netherland they forced, as a punishment unique in the history of the British Empire, the English imposed common law upon all the colonists, including the Dutch. This was problematic, as the patroon system of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-19th century. The influence of Roman-Dutch law continued in the colony well into the late 19th century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.
Domestic contract of common law marriage was abolished in the following 27 states on the dates indicated. Note that Massachusetts (which included Maine, 1652 - 1820) abolished common law marriage during the colonial period and before it was abolished in England and Wales.These 13 states have never permitted domestic common law marriage; but like all 50 states and the District of Columbia, they recognise all validly contracted out-of-state marriages, including validly contracted common law marriages.Outside of confederation, the Territory of Guam does not recognise common law marriage. The Commonwealth of the Northern Mariana Islands also does not recognise common law marriage but "might" recognise customary marriage. In "Santos v. Commonwealth", Petitioner argued that common law marriage was sufficiently similar to Carolinian customary marriage that it should be recognised as the same. The Court ruled that, while CNMI statute provides that (English) common law provides the rule of decision in the absence of statutory law "or" customary law to the contrary, Petitioner did not argue that her marriage was a marriage under "customary" law but a marriage under "common law"; thus, whereas a validly contracted marriage under Carolinian or Chamorro customary law might be held a valid marriage, a common law marriage could "not" be.
Slavery was abolished throughout much of the British Empire by the Slavery Abolition Act 1833 but as early as 1706 the common law had recognised that as soon as a slave came to England, he became free. The courts did not recognise contracts which were equivalent to slavery or servitude.
Today, domestic common law marriages can be contracted in the following nine jurisdictions:Additionally, these two jurisdictions recognise domestic common law marriage in the limited circumstances indicated:Of the remaining 40 states, 13 never permitted and 27 no longer permit common law marriages to be contracted within their jurisdiction. The latter group will only recognise a domestic common law marriage if it was contracted in the state prior to the date of abolition. Nevertheless, all states recognise validly contracted "foreign" common law marriages, because they recognise all validly contracted foreign marriages. E.g. California abolished the common law contract of marriage in 1895 and, thus, will only continue to recognise a domestic common law marriage contracted in California prior to that date; but any validly contracted "out-of-state" common law marriage will be recognised by California, because it recognises "all" validly contracted foreign marriages under Cal. Family Code 308.
All U.S. jurisdictions recognize common-law marriages that were validly contracted in the originating jurisdiction, because they are valid marriages in the jurisdiction where they were contracted, because of the Full Faith and Credit Clause. However, absent legal registration or similar notice of the marriage, the parties to a common law marriage or their eventual heirs may have difficulty proving their relationship to be marriage. Some states provide for registration of an informal or common-law marriage based on the declaration of each of the spouses on a state-issued form.
All U.S. jurisdictions recognize common-law marriages that were validly contracted in the originating jurisdiction, because they are valid marriages in the jurisdiction where they were contracted. see: Full Faith and Credit Clause. However, absent legal registration or similar notice of the marriage, the parties to a common law marriage or their eventual heirs may have difficulty proving their relationship to be marriage. Some states provide for registration of an informal or common-law marriage based on the declaration of each of the spouses on a state-issued form.
Australian blasphemy law originated in England where the continued existence of the common law offences of blasphemy was controversial. In 1985 the English Law Commission published a report on "Criminal Law: Offences against Religious and Public Worship", which recommended the abolition of blasphemy offences. The report noted that "there is no one agreed definition of blasphemy and blasphemous libel and that it would scarcely be practicable, even if it thought desirable, to amend the common law definition by statute". The authors added that "it is now clear that none of the arguments for retaining a law of blasphemy are sufficiently strong to support this view and each of them is outweighed by other considerations which persuade us that a law of blasphemy is not a necessary part of a criminal code. Moreover, we have no doubt that any replacement offence which might be devised would in practice prove to be unacceptably wide in ambit." The Commission concluded "that the common law offences of blasphemy and blasphemous libel should be abolished without replacement". These two offences were abolished in July 2008.
Stevens ambitiously tried to mix understated humor with serious legal comment. He explained that the article's purpose was "to examine whether the same types of forces that shaped the development of the common law also generated the Infield Fly Rule." Noting that England was the birthplace both of common law and of proto-baseball, Stevens discussed the Knickerbocker Base Ball Club, the first team using codified baseball rules, in 1845. For the club's members, the "rules which governed their contests clearly indicate that the game was to be played by gentlemen. Winning was not the objective; exercise was." As winning, however, came to be valued over exercise when the game spread beyond its gentlemanly origins, "written rules had to be made more and more specific in order to preserve the spirit of the game."
Well into the 19th century, ancient maxims played a large role in common law adjudication. Many of these maxims had originated in Roman Law, migrated to England before the introduction of Christianity to the British Isles, and were typically stated in Latin even in English decisions. Many examples are familiar in everyday speech even today, "One cannot be a judge in one's own cause" (see Dr. Bonham's Case), rights are reciprocal to obligations, and the like. Judicial decisions and treatises of the 17th and 18th centuries, such at those of Lord Chief Justice Edward Coke, presented the common law as a collection of such maxims.
In England where the common law offences originated, the question was considered settled in 1838 by Gathercole's Case. Baron Charles Alderson, speaking for the court, declared that "A person may, without being liable to prosecution for it, attack Judaism, or Mahomedanism, or even any sect of the Christian religion (save the established religion of the country); and the only reason why the latter is in a different situation from the others is, because it is the form established by law, and is therefore a part of the constitution of the country". As Australia and Australian states and territories have no established religion it is doubtful that the common law offences of blasphemy and blasphemous libel apply in Australia.