Part One

Anglo—American Legal Culture

Chapter 1　Historical Development of the Common Law

导读

The common law system came into being,historically,in England largely as the result of the activity of the royal courts of justice after the Norman Conquest. In England,first,there were Germanic laws during the Anglo‐Saxon period. Though England was ruled by a single monarch,the law in force was still made up of strictly local customs. With the Norman Conquest,the period of tribal rule was finished and feudalism installed. Gradually,through the institutionalization of the royal courts and the extension of their jurisdiction ,a body of laws called the common law applied to the whole country came into being. There is also a dissenting view that common law is also royal law；the basic characteristics of much of the common law can be traced back to royal legislation.

There are four distinct periods:

First,The Anglo‐Saxon Period（Preceding the Norman Conquest of 1066）

This is the period when different tribes ofGermanic origins（Saxons,Jutes,Danes and Angles）divided up England. These tribes applied local customs for dispute resolution.

Second,Formation of the Common Law（1066—1485）:From Writs to Actions on the Case

The Norman Conquest brought about a strong and centralized administrative organization. With it,the period of tribal rules was finished and feudalism installed. The highly organized character of English feudalism prepared the way for the development of the common law. The following are some of the most important developments.

（1）County and Local Courts

The hundred local or country courts that applied local custom were gradually replaced by new feudal courts that still applied the same local customary law. But how could the highly organized character of the feudal system of government and the establishment of feudal courts help the development of the common law since the new feudal courts applied also local customary law?What was done is that in either case,the applicable law or rule was extended to all the people in the jurisdiction.

（2）Jurisdiction of Royal Courts—Restricted Reach

The creation of the commune ley,an English law truly common to the whole of England,was to be the exclusive work of the royal courts ofjustice.

At first,the King only exercised“high justice. ”The Curia Regis,from which the King dispensed justice assisted by his closest officials and highest ranking persons,was a court for only the important personalities and disputes.

Feudal barons resisted the jurisdiction of royal courts. Certain parts of the Curia Regis gradually became autonomous bodies and established their seats at Westminster.

Royal courts had jurisdiction only over Royal finance,ownership and possession of land,and serious crimes.

（3）Extension of Royal Jurisdiction

Reasons for extension included:more cases meant more fees for the kingdom,people viewed the royal courts superior to feudal courts,only royal courts had the means to summon witnesses and to enforce judgments,and only the King,apart from the church,could require the swearing of an oath. Royal courts followed modern procedures and availed of the verdict of a jury.

（4）Writs

Until 1875,the royal courts remained special courts to which the citizen had no automatic access. The person who pressed a claim had first of all to address his request to an important royal official,the Chancellor,asking him to deliver a writ. A writ is simply another term for a court order. The effect of a writ was to enable the royal courts to be seized of the matter upon the payment of fees. It was not automatic that a writ would be issued. The judges had to be convinced to take up the matter complained. Each instance had to be individually examined. The list of established situations where writs were granted automatically was slow to grow.

Nonetheless,the list grew and increased over times. Neither should the extension of royal jurisdiction be measured by such increase nor was caused by the passage of the Statute ofWestminster II of 1285. That statute authorized the Chancellor to deliver writs in consimilicasu （in instances having great similarity to others for which the delivery of the writ was already established）. The reasonable explanation for the extension over times is to accommodate increasing social needs.

（5）Actions on the Case

What is significant and decisive is the appreciation by the royal courts ofthe significance of the declaration made by the plaintiff explaining the details of the facts of the cases. And this led to the admission by the royal courts of their jurisdiction over new factual situations or instances because of the compelling nature of the moral and justice issues. In time,these admissible actions multiplied and were given special titles in the light of the facts which justified them—actions of assumpsit ,deceit, trover ,negligence,and so on. These actions may be generally classified under three headings:trespass to land,trespass to goods,and trespass to the person. Trover is defined as a common law action to recover the value ofpersonal property illegally converted by another to his or her own use. In old French,trover means find.

Third:Growth of Equity（1485—1832）

（1）Emergence of Equity

The strict compliance with formalist procedure exposed the common law to two dangers:that of not developing with sufficient freedom to meet the needs of the period and that the dangers of becoming paralyzed because of the conservatism of the legal world of the time.

Unfortunately,these shortcomings ofthe royal courts could not be rectified or corrected by other courts that had general jurisdiction,for these courts were themselves in decline and gradually disappeared from the scene.

The situation led to the eventuality that in a number of cases,no just solution could be found. In seeking another way of obtaining redress,a direct appeal to the King,the fountain of all justice and favor,was the logical and natural option.

In cases of no solution or shocking solution,people addressed the King asking him to intervene as an act of royal grace to satisfy conscience and as a work of brotherly love. As the King's confessor,the Chancellor had the responsibility of guiding the King's conscience and would,if he thought it appropriate,transmit the request to the King for judgment in his council.

In other countries,thejudges themselves could supply the required remedy by prohibiting the abuse of a right or fraud,or by applying the principle of public order and good morals；such remedies were possible on the European continent within the very framework of the legal principles. In England,however,the royal courts did not have the same freedom of action because they had never had the same general jurisdiction and were bound to observe rigid procedures.

This recourse to the royal prerogative,perfectly justifiable and unopposed so long as it remained exceptional,could not fail to give rise to a conflict when it became institutionalized and developed into a system of legal rules set up in opposed to the common law.

Gradually request for intervention by the Chancellor became more frequent；the practice became institutionalized. At the time of the Wars of the Roses（1453—1485）,the Chancellor became a more and more autonomous judge deciding alone in the name of King and his council. Decisions were made on the basis of“the equity of the case. ”Equitable doctrines grew out of the chancellor's decisions. These worked to add to and correct the legal principles applied by the royal courts.

After 1529,the Chancellor no longer served as confessor to the sovereign and was not an ecclesiastic but examined the petitions addressed to him as a real judge and observed a written procedure inspired by Canon law. The substantive principles he applied were also largely taken from Roman law and Canon law rather than the very often archaic and outmoded common law rules.

A number of legal institutions（the principal one being the trust）and concepts such as misrepresentation,undue influence,specific performance,and subrogation were developed in the Chancellor's equitable jurisdiction.

In all of these matters,the intervention of the Chancellor is discretionary. He only intervened if it was considered that the conduct of the defendant was contrary to conscience,and if the plaintiff had no cause for reproaching himself；he,on his side,had to have“clean hands”and must have acted without undue delay in asserting his right.

The English sovereigns favored the chancellors'jurisdiction due to their concern for justice and good administration. The procedure of Chancery was private,written and inquisitorial in nature and also preferred by a monarch of authoritarian disposition.

As the chancellor applied Roman law,this worked to reduce the law to a simple private law and lawyer's work. And all these features helped give a greater scope to royal absolutism and executive discretion.

The risk is that the success of the Chancellor's equitablejurisdiction and the decay of the common law carried potentially the seed of a danger that disputing parties would eventually abandon the common law court.

（2）Conflict and Compromise Between Common Law and Equity

The royal courts and the common law lawyers resisted the encroachment by the Chancellor on their jurisdiction and the Chancery's continuing expansion.

To defend their position and work,and to support them against royal absolution,the Common law courts also found an ally in Parliament. The organization of Chancery,its congestion and venality（that is,association with corruption or bribery）were also used as effective weapons.

A compromise was finally reached and pronounced by James I. The common law courts and the courts of Chancellor worked side by side in a kind of equilibrium of power.

Specifically,no new encroachments at the expense of the common law courts by the Chancery were allowed. The Chancellor would continue to adjudicate according to its precedents,not morality alone and arbitrary. The king also agreed he would no longer use his prerogative to create new courts independent of the established common law courts. The Chancellor,as a legal or political figure,was no longer seen asjudging on the basis of morality alone and tended to act more and more as a truejudge. Further,after 1621,the control of the House of Lords over the decision of the Court of Chancery was admitted.

Over the centuries,the rules of Equity became as strict and as legal as the rules of the common law. Today,the body of rules developed in Equity is an integral part ofEnglish law. The reasons formerlyjustifying the intervention of the Chancellor no longer exist；if English law is in need of remedial measures,there is Parliament. The security oflegal relations and the supremacy of the law would be threatened ifjudges were allured to bring the rules of established law back into question under the pretext of equity.

Yet,key distinctions between law and equity remain important today. Among the distinctive features of a suit in equity as opposed to an action at law were:

·The absence of jury—the judge instead of a jury is the exclusive decision‐maker in equity；

·Court of equity follows a more flexible procedure；

·It enjoys a wider scope of review on appeal；

·While the law courts were generally restricted to the award of money damages as a relief,equity operated on the person of the defendant（equity acts in personam）. The court of equity could,for example,issue an injunction,forbidding a particular breach of promise of an obligation,or it could decree specific performance of obligation. A defendant who disobeyed could be punished by fine or by imprisonment for contempt of court until compliance；

·In the beginning at least,the Chancery was not considered a court,it did not appear to be deciding“in law”；

·Even the terminology adopted by the Chancery's court bears witness to the distinction. The procedure before the court is a“suit,”not an“action”；one invokes“interests,”not“rights”；the Chancery grants a“decree”not a“judgment”；he may award“compensation,”not“damages. ”

Fourth:The Modern Period

（1）Duality Versus Unity in Action:Fusion or Merger of the Common Law and Equity

Before 1873—1875,in any one dispute,it might have been necessary to institute two actions:one before a common law court,the other in Chancery. Such,for example,was the case,if in addition to the specific performance of a contract（a remedy obtained in Equity）,damages for the delay in the performance of the contract（a remedy obtained at common law）were also wanted.

The 19th and 20th centuries are periods of fundamental transformation. Legislation brought about reform and modernization. Adjudication is free of formalistic procedural framework of forms of action. Greater attention is devoted to substantive law. Rules of established law are systematic and re‐organized.

Judicial organization was greatly changed by the Judicature Acts of 1873—1875,which removed the formal distinction between common law courts and the court of the Chancellor. The Acts did not change the law as it stood before but merely enabled common law and Equity to be administered concurrently by the same courts. By virtue of the Acts,all English courts became empowered to apply the rules of common law as well as those of Equity.

Equity is a body of rules that were given effect by the Chancery to correct English law in the course of history. Today,it is an integral part of English law. In the High Court ofJustice,some judges sitting in the Queen's Bench Division decide according to the oral and contradictory procedures of traditional common law,and others sitting in the Chancery Division,decide cases according to the written,inquisitorial procedures derived from the old Equity proceedings.

The same barrister does not plead in both divisions；the tradition of being either a“common lawyer”or an“Equity lawyer”persists.

As to the assigning of subject matters to one or another of the divisions of the High Court,the historical origin of the law to be applied is no longer of any importance. What is decisive is which of these two procedures is most appropriate in the circumstances. Equity now includes that a series of subjects in which it appears appropriate to proceed by way of written procedures；whereas the common law comprises those in which the oral procedures of the past are retained.

Generally speaking,today,in order to know whether one is within the area of the common law or that of Equity,it is more important to know which branch of law is involved rather than what sanction is available. These two branches of law are made up of certain number of subject matters and characterized by the use of a definite procedure and marked by their ownjuristic attitude. Common law thus comprises criminal law,the law of contract and torts；but the common lawyers apply equally doctrines as misrepresentation,undue influence and estoppel. Equity includes the law of real property,trusts,partnerships,bankruptcy,the interpretation of wills and the winding up of estates.

The United States adopted the dual system oflaw and equity along with the general principles of the common law system. The courts at both the federal level and the state level perform the dual function of law and equity.

（2）Landmarks in the History of the Development of English Law

13th century was the formative period of the common law；

16th century is the formative period of Equity；

17th and 18th centuries is the period of Harmonization；

18th and half century is the absorption of the law merchant.

（3）Lessons Learned from the Historical Development of the Common Law in England

Many conclusions may be drawn from the study of historical development of the common law in England. The following observations are offered as a starter for further analysis and study.

·The way of the birth and growth of the common law in England appears to reflect the general trend ofpolitical development of most societies in the West during that period. This is manifested in the acquisition of a superior and dominant status by the royal courts of the kingdom at the sacrifice of feudal courts and tribal courts as well as a law that is generally and commonly applicable to people throughout the kingdom.

·The system of law as demonstrated in the emerge of the court of equity and its fusion with the common law court into one hierarchical structure and the development of a scheme of procedure and remedies to meet the different and growing needs serve to satisfy the expectations ofjustice,fairness and equality.

·We witness the progressive development of the law over time. Both the legal system and the system oflaws make themselves more complete and perfect.

Exercises

Please choose the best answer to the following questions:

1 . The c om m on l aw sys tem c am e in to _____ , hi sto rically,in England largely as the result of the activity of the royal courts ofjustice after the Norman Conquest.

A. life

B. name

C. existence

D. been

2. Royal courts had _____ only over Royal finance,ownership and possession of land,and serious crime.

A. authority

B. autonomy

C. action

D. auspices

3. The effect of a writ was to _____ the royal courts to be seized of the matter upon the payment of fees.

A. embody

B. ensure

C. entrust

D. empower

4. In other countries,the _____ themselves could supply the required remedy by prohibiting the abuse of a right or fraud,or by applying the principle of public order and good morals.

A. courts

B. governments

C. parties

D. laws

5. Gradually request for intervention by the Chancellor became more frequent,and the practice became _____ .

A. constitutionalized

B. established

C. commercialized

D. systemized

6. The Chancellor,as a legal or political figure,was no longer seen as judging on the basis of _____ alone and tended to act more and more as a true judge.

A. morals

B. mutuality

C. correctness

D. conscience

7. While the law courts were generally restricted to the award of money _____ as a relief,equity operated on the person of the defendant.

A. injuries

B. compensation

C. payback

D. collection

8. Judicial organization was greatly changed by removing the _____ distinction between common law courts and the court of the Chancellor.

A. ceremonial

B. former

C. significant

D. judicial

9. The United States adopted the _____ system oflaw and equity along with the general principles of the common law system.

A. bilateral

B. bidirectional

C. bifurcated

D. bicentennial

10. The way of the birth and growth of the common law in England appears to reflect the general _____ of political development of most societies in the West during that period.

A. tendency

B. inclination

C. result

D. sentiment 0BadWFE/7F5TuhQ0wVwDeXBDpFLhGWeLh9TZyymY4113JDTen9S+jS//ao+P2AG2