Precursors

Abstract

Legal historians since F. W. Maitland have agreed in dating the origins of the English common law to the era of the reign of Henry II (1154–1189) (Pollock and Maitland 1968; Milsom 1976; Hudson 1996; Brand 1992b). Although the Anglo-Saxon monarchy prior to the Norman conquest was strong and relatively centralised, with kings issuing law codes and taking an active interest in the maintenance of law and order and in dispute resolution (see Wormald 1999a, Wormald 1999b), it was only with the introduction of new remedies in the 1160s and 1170s that the foundations were laid for a system of justice in which cases would be commenced by a regular procedure of returnable writs, and judgments rendered by a professional judiciary, operating in courts keeping records (see in addition Turner 1985; Brand 1992c). These remedies were regular and available throughout the king’s domain, and the royal courts administered “one national law and not a multitude of local and regional customs” (Van Caenegem 1988, 29). When historians speak of the “common law” in the late twelfth and early thirteenth centuries, it is this system which they are referring to: the term itself was not then in use. By the mid-thirteenth century, however, the expression “common law,” adapted from the canonists’ invocation of a ius commune, was widely used to mean the body of law administered in the court which was distinct from statutes enacted by the king with his council, prerogative and local custom (Hudson 1996, 18; Pollock and Maitland 1968, I: 176–7).