Encyclopedia of Criminology

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English Legal Traditions

The English Common Law arose gradually from the judicial uses and customs of English judges between the twelfth and fourteenth centuries, rather than from written statute. Its basic features include trial by jury (grand and petty), the adjudication of civil and criminal cases in "common law" courts, and the institution of royal justices on circuit to try defendants accused of grave crimes. Increasingly after the proclamation of Magna Carta in 1215, the Common Law came to represent the sacred rights of Englishmen to be exempt from arbitrary government action, symbolized by the rights to trial by a jury of one's peers after a grand jury's determination of probable cause and a speedy trial in accordance with established procedure. After Magna Carta, English kings who ran afoul of the Common Law were obliged to yield or abdicate their throne. By the seventeenth century, the Common Law had become a hedge against royal absolutism, challenging the claims of absolute monarchs with principles of legal equality and natural rights that transcended the decrees of civil authority. In this fashion, the ancient Common Law became imbricated in the early modern movement toward constitutional governance, culminating in the Glorious Revolution of 1688 and the subsequent English Bill of Rights.

Historical Antecedents of the English Common Law

The Common Law was an institution that evolved at an almost geological rate of development, and thus should be viewed in the context of English Medieval history. With the destruction of the Western Roman Empire in 426, the western territory fell under the control of Germanic kings. Germanic tribes from modern-day Scandinavia, the Angles, Saxons, and Jutes, invaded Britain in the years after the fall of the Empire, establishing their control of the island by the year 500. Historians call the next 566 years of British history "Anglo-Saxon" after the two most prominent of the invading tribes. The Germans replaced Roman law and culture in Britain with their own tribal customs, including Germanic legal practices. Until the beginning of the seventh century, German law was oral and to a significant degree clan-based. Due to the primacy of kinship groups and "blood ties" among the Germans, an offense committed by one person on another was punished chiefly through the "blood feud"-a practice whereby the clan group of a murder victim would exact revenge by taking the killer's life. This "eye for an eye" approach to vengeance against the wrongdoer could also be satisfied through payment of compensation to the victim or the victim's family, a sum called the wergild. The Salic Law of the Franks, for example, stipulated that wergild be paid for offenses like theft, rape, arson, assault, and murder.

From the seventh century onward, the payment of wergeld displaced the blood feud as the most common form of punishment in Anglo-Saxon Britain. Between 601 and 604 Aethelbert of Kent promulgated the first in a series of Anglo-Saxon laws called "dooms," which prescribed monetary fines for different kinds of criminal offense. The dooms of Aethelbert and his successors marked a clear effort by the Anglo-Saxon kings to quell tribal resort to the blood feud. After the ninth century, crime victims and their families largely sought redress from royal officials rather than personal vengeance, a trend perpetuated by the dooms of Edgar (946) and Canute (1020-1034). By the eleventh century the blood feud had all but vanished from English criminal justice.

As the number of aggrieved parties seeking redress from the king grew, the need for a procedure to determine the merits of individual cases emerged-the system of trial. The latter began as a proceeding in which the parties to the dispute swore to the truth of their respective claims (an oath called "compurgation"). If the outcome was inconclusive, an "ordeal" often followed, designed to invite divine intervention in the matter. Ordeal could take as many as three forms: trial by hot water, cold water, and red hot iron. The guilt or innocence of the defendant depended on the outcomes of these trials. With the Norman invasion of 1066, William of Normandy introduced a fourth kind of ordeal, trial by battle, in which the result of a duel between the disputants determined guilt or innocence (the assumption being that God would ensure that the party with the just cause won).

William's invasion of Britain in 1066 was an important paving stone on the historical road to the English Common Law. After he had subjugated all of England, William rewarded his Norman countrymen with grants of land in exchange for oaths of allegiance to himself as king. He also replaced Anglo-Saxon sheriffs with his own handpicked followers, and substituted the curia regis (royal council) for the main Anglo-Saxon council, the witenagemot. William was the first ruler of Britain to introduce subinfeudation, a complex skein of relationships between lords, vassals, and sub-vassals, which he imported from his kingdom in Normandy. At the top of this convoluted structure was the English king, supreme ruler of his realm. William's successors would continue his centralization of royal power, especially his grandson Henry II, the official founder of the English Common Law.

Henry II and the Rise of the English Common Law

Henry II (r. 1154-1189) is generally credited with laying the foundation for the Common Law through his reforms of the English legal system. Under Henry's reign, the English king for the first time asserted exclusive jurisdiction over civil and criminal cases. Emulating the centralizing tendencies of his grandfather, Henry emerged as both the prime guarantor of property and the holder of sole jurisdiction over criminal matters. He projected his power over the latter sphere by dispatching itinerant judges called "justices of eyre"-circuit judges who traveled throughout England hearing civil and criminal cases on behalf of the king. Following earlier precedent, Henry's judges summoned knowledgeable citizens of the locales they visited to provide information about the case and furnish their opinions about who the perpetrator might be. The royal justices thereby solidified a practice with roots in Germanic tribal society, the Anglo-Saxon period, and Norman England, an institution that became known as the "grand jury." Over time, what we today recognize as a "petty jury" developed from Henry's grand jury system to decide issues of guilt and innocence in local criminal cases.

In 1166 Henry published the Assize of Clarendon (an "assize" being either a decree of law by the king, or new judicial procedures derived from such a decree), requiring that the 12 heads of family of every "hundred" (a group of villages) be placed under oath and compelled to report the identities of notorious criminals and their accomplices to the royal justices. The convicted were typically banished after a trial by ordeal, usually the ordeal of cold water. Even if the trial resulted in the acquittal of the accused, he or she could still be punished through exile if his or her reputation was sufficiently unsavory. A system of royal writs enforced this extension of the King's power over the crimes of his subjects. These writs represent a significant innovation introduced by Henry II. Often addressed to the sheriff regarding a case within his county, the writs were peremptory in tone, enjoining the recipient to substitute, for example, a jury trial for trial by battle. Regardless of the subject matter, the expectation was that the writs would be obeyed to the letter. As M.T. Clanchy, a scholar of Medieval England, has noted, the effect of reducing the King's commands to standardized written form served to stabilize English criminal procedure and to promote enforcement of the substantive criminal law, thereby lending to English justice an air of permanence. For Clanchy, the technology of writing was Henry II's main contribution to the Common Law.

Through his innovative use of writs, Henry directed that specific types of civil and criminal matters be resolved through trial by jury. He ordered that a body of twelve local men resolve such matters as disputes over title to land, possession of weapons, and malicious abuse of process ("appeals of felony"). Superintended by Henry's justices of eyre, these proceedings generated a body of legal principles that became the nucleus of the English Common Law. In 1215 the Fourth Lateran Council banned participation by clergy in trial by ordeal, a prohibition that virtually ended the practice in much of Western Europe, including England. Consequently, in the ensuing decades the trial (or petty) jury became a common means of adjudicating criminal cases, modeled on Henry II's grand jury of twelve local men. By 1275 it was rare that a juror sitting on a grand jury would serve on a petty jury in the same case. In 1352 such double service was banned by law.

Magna Carta and Parliament

At the same time as the Vatican banned trial by ordeal in 1215, an epoch in the history of English law was dawning: the signing of the Magna Carta. Weakened by bruising struggles with the Pope over appointment of the new archbishop of Canterbury and with Philip Augustus over his French territories, King John (r. 1199-1216) was vulnerable to domestic encroachments on his royal power. English barons exploited his disadvantage by forcing him to sign the Magna Carta, whereby the King pledged not to levy excessive financial contributions on his noble vassals or to prosecute them contrary to law. Under the Charter, the King was further obliged to acknowledge the Church's freedom to select its own bishops and the rights of the towns to exercise their customary liberties. From King John's time forward, every English king had to respect the law and traditions of his realm. Those kings who did not-like Edward II (r. 1311-1327) and Richard II (r. 1377-1358)-were deposed or forced to abdicate. In the modern age, Magna Carta, which had originally only restrained the actions of the king in dealing with his noble vassals, was broadly interpreted to protect all citizens against royal usurpation.

As the principles of Magna Carta settled into the bedrock of English legal history, the forerunner of the English Parliament came into being. It began as a meeting of the primary "estates" in English society (the clergy, nobility, and wealthy commoners) to confer with the king, particularly when he wished to raise taxes from them. The term "parliament" was attached to these meetings of the estates, meaning "discussions." Edward I summoned the first parliament (the so-called "Model Parliament") in 1295; this meeting established the precedent for subsequent parliaments of nobles and prelates to meet in the House of Lords and knights and eminent commoners in the House of Commons. As the Middle Ages waned into the early modern period, English kings recognized the growing power of parliament: Henry VII secured from parliament an act of succession to legitimate his claim to the throne, achieved by his victory on Bosworth Field in 1485; similarly, Henry VIII engineered his break with the Catholic Church through parliamentary statutes abrogating appeals to the papal court and instituting royal dominance of the Anglican church (1533 and 1534, respectively). Clearly, at the onset of the modern age, the notion of the king's accountability to longstanding tradition and precedent had converged with the Common Law to prepare the way for constitutional polity in England.

The Development of the Common Law: the Early Modern Period

Between the twelfth and fourteenth centuries, three main Common Law courts emerged: Common Pleas (1187), which presided over misdemeanors and civil cases; Exchequer (ca. 1179), which heard financial cases; and Chancery (ca. 1320), which enjoyed equity jurisdiction and resolved matters involving orphans and incompetents. These Medieval common law courts, in other words, had jurisdiction over a limited range of cases-an inadequacy only compounded as social and economic modernization in England created new crimes beyond the scope of their mandate. In part to fill the jurisdictional gaps, in part to expand royal power, the Tudors established new judicial institutions like the Court of High Commission (1534), which heard criminal appeals from Archbishops' Courts, and the Courts of Star Chamber (1470), devoted to trying crimes involving ecclesiastical matters (church doctrine and discipline). Additionally, the Tudors enlarged the jurisdiction of the Privy Council, which after 1470 flexed its new judicial muscle through the Star Chamber.

Prosecution in these royal forums stood in stark contrast with the legal forms of the Common Law. Subject to interrogation by court members, defendants were not informed of the charges against them, the names of the accusing witnesses, or the gist of witness statements. Neither the Court of High Commission nor of Star Chamber sat with a jury. Accordingly, rates of conviction before the royal courts were high. Defendants tried for heresy and other deviations from religious orthodoxy faced possible death sentences if convicted. In 1538, John Lambert was prosecuted before the Privy Council for denying the doctrine of transubstantiation (the Catholic dogma that the substance of the bread and wine in the Eucharist was transformed into the body and blood of Jesus), found guilty of heresy, and burned at the stake. In the aftermath of Lambert's trial, Parliament passed the Act of Six Articles, which criminalized all speech critical of the dogma of transubstantiation. This interfusing of theological correctness and political authority was characteristic of Tudor England. It eventually galvanized opposition in the seventeenth century-an opposition that would define itself, with growing vehemence, in terms of the ancient Common Law rights of Englishmen.

If royal prerogative and religious orthodoxy were the dominant themes of Tudor jurisprudence, the tumultuous era of the Stuart kings was notable for the struggle to limit the authority of the monarch. An early manifestation of this struggle was the campaign waged in the early 1600s by the Chief Justice of the Court of King's Bench, Sir Edward Coke, to combat the authority of the royal courts. Coke and his Common Law adherents employed writs as weapons against these courts: the writ of habeas corpus to obtain release of defendants convicted and sentenced to jail terms, and the writ of prohibition to discontinue trials in the Star Chamber and Court of High Commission. When in 1641 the Parliamentary party gained control of the government, it promptly abolished the courts of Star Chamber and High Commission.

The abolition of the two leading royal courts presaged the ultimate victory of the Common Law over political absolutism in England. The Stuart kings-particularly James I and his son, Charles I-insisted on their divine right as monarchs to rule without consent from their subjects, beholden only to God for their actions. Between 1603 and 1640, the royal absolutism of James and Charles envenomed the Crown's relations with the House of Commons. In 1629 Charles refused to consult with Parliament in his government of the country, arbitrarily levying taxes without parliamentary input. When Charles finally summoned Parliament in 1640 to finance an army to crush a rebellion in Scotland, the House of Commons abolished the royal courts, passed an act requiring the King to summon Parliament every three years, and impeached the unpopular Archbishop Laud (an ally of Charles). This much Charles could stomach. What he could not tolerate, however, was Parliament's refusal to finance another army to quell an uprising in Ireland, a refusal that drove Charles to take military action against Parliament. At the center of the English Civil War (1642-1649) that followed was the issue of where sovereign power resided in England: with the King or with Parliament. When parliamentary forces defeated the King's army in 1649, Charles was convicted of high treason and executed. For the next eleven years England was governed by a military dictatorship. When its leader, Oliver Cromwell, died in 1558, the English had tired of military rule, and hankered after a return to civil government and stability. In 1660 Charles II, oldest son of Charles I, was restored to the throne.

In confirming the abolition of the Courts of Star Chamber and High Commission, Charles II reaffirmed the vitality of the common law courts and the tradition of trial by jury. Yet, restrictions on common law courts compromised their ability to ensure due process protections in criminal trials. Judges held their positions at the pleasure of the King, thus opening the criminal trial process to political influence. Furthermore, sanctions could be imposed on jurors who returned verdicts at odds with the wishes of the chief judge, including fines and even imprisonment. In Bushell's Case (1670) jurors were jailed for refusing to convict William Penn (who later founded Pennsylvania) as the judge desired. On appeal to the King's Bench, the Court found in favor of the imprisoned jurors, holding that their verdict was not incommensurable with the evidence. Although the decision in Bushell's Case scored a victory for the integrity of the common law jury, Charles II and his successor, James II, were not deterred. Their agents browbeat jurors who defied the will of royalist judges, especially in the trials of non-conforming Protestant defendants. In his "bloody assizes," the Chief Justice of the King's Bench, Sir George Jeffreys, became the loyal executor of the King's demands that the criminal law punish religious dissent, even at the cost of overriding the findings of the jury. Political trials during the Restoration like the "Popish Plot" (1678-1680) likewise renounced any semblance of due process. The defendants were charged with plotting to depose Charles II and replace him with James II. Not only were the accused held in close confinement without access to legal counsel or opportunity to confront adverse witnesses, but they also lacked knowledge of the charges against them. The later Stuart kings, in their willful disregard for the spirit of the English Common Law, provoked a backlash from English commoners.

That backlash came in the form of the "Glorious Revolution" of 1688, a velvet revolution that peacefully deposed James II and elevated William of Orange, a grandson of Charles I, to the throne. William's accession supplied the occasion for a renewal of the Common Law and adoption of a constitutional monarchy that would decisively circumscribe the power of the English monarch. William recognized the political supremacy of Parliament (as symbolized in William's instauration by Parliament). The divine right of kings in England had expired; henceforth, the king would acknowledge that he ruled with the consent of his English subjects. The Glorious Revolution produced an English Bill of Rights, a blend of both traditional and novel legal protections and privileges. Judges would hold their offices as long as they preserved "good behavior," rather than at the pleasure of the king, thereby minimizing royal interference in criminal trials. New laws guaranteed freedom of religion to Protestant non-conformists and dissenters, requiring that the English king could not be Catholic. After 1688, no standing army could exist without parliamentary approval, nor could the rights of Protestant subjects to carry weapons for their self-defense be infringed. As for criminal law, the English Bill of Rights immunized debates in Parliament from criminal prosecution, banned exorbitant fines or bail, restricted the King's ability to grant immunity from prosecution, prohibited cruel punishment, and mandated that jurors be returned and empaneled in accordance with accepted procedure. It required that defendants in trials for treason be given a copy of the indictment and access to defense counsel. In such trials, conviction was allowed only on the testimony of two or more witnesses (or by an uncoerced, in-court confession by the accused).

The Glorious Revolution should not be viewed as a triumph of democracy as we understand the word today. Instead, it shifted the site of power from the English monarch to Parliament, a body that represented the interests of the English elite. The Revolution thus established a constitutional monarchy and an aristocracy that would endure at least until the first Franchise Act of 1832, and even beyond to the outbreak of world war in 1914. This being said, Common Law courts emerged from the Revolution as vehicles for protecting the rights of English citizens against despotic power. The independence of judges, the autonomy of jurors to reach verdicts based on the evidence, and the rights of due process (e.g., freedom from self-incrimination, access to counsel) were all undeniable gains made possible by the Revolution. These were fundamental tenets of an ancient tradition of law, given new life in 1688, which dated back to the era of Henry II and the primogenitors of the Common Law.

The Legacy and Influence of the English Common Law

After 1688 England's Common Law courts functioned as the prime guarantor of constitutional rights until 1873, when they were placed under the control of Parliament. The old wine of the English Common Law was decanted into the new wineskins of Britain's overseas colonies and their legal systems. In the colonial United States, for example, the colonists imported the substantive and procedural criminal principles imbedded in the English Common Law. Over time many state legislatures codified these Common Law principles. In the late 1800s the American jurist David Dudley Field published his "Field Code," a collection of uniform criminal and civil statutes and procedures based on the Common Law that was later adopted in whole or in part by states throughout the country, including New York. Today, the majority of states have abolished Common Law crimes, which have been assimilated into-and statutorily defined by-state penal codes. This trend notwithstanding, some U.S. states continue to acknowledge the legal efficacy of the Common Law. The Florida Criminal Code states: "The common law of England in relation to crimes, except so far as the same relates to the modes and degrees of punishment, shall be of full force in this state where there is no existing provision by statute on the subject." Arizona Revised Statutes echoes this language: "The common law only so far as it is consistent with . . . the natural and physical conditions of this state . . . is adopted and shall be the rule of decision in all courts of this state."

Periodically, defendants in state courts are charged with violations of the common law rather than a statutory provision. In 1996 Michigan prosecuted Dr. Jack Kevorkian under the state's common law against suicide. The jury acquitted Kevorkian on the ground that the common law was vague on the issue of assisted suicide. (Kevorkian was later convicted after Michigan passed a law making doctor-assisted suicide illegal.) In other cases, resort to common law principles has met with greater success: where state law fails to define with specificity crimes like "manslaughter" or an element of murder like "malice," the common law often serves as a gapfiller to clarify the statute. Most U.S. states today, including those that have codified the Common Law, are "Common Law states"-i.e., Common Law principles are still in effect, although typically as sources for elucidating statutory provisions. Some states, on the other hand, are "code jurisdictions;" they have dispensed with all resort to Common Law precepts, declining to regard as a criminal offense actions that do not violate the statutory law of the state. Whether identified with Common Law states or Code Jurisdictions, the penal code of nearly every U.S. state embodies the principles and prohibitions of the Common Law, including defenses traditionally recognized under it.

The Common Law as it exists in the contemporary U.S. legal system is an artifact of Medieval and early modern England. The core of the Common Law in the U.S. today—stare decisis, due process, the rule of law, and trial by jury-all have archaic pedigrees. With its roots in ancient soil, shaped by centuries of conflict, struggle, and reform, modern American criminal law demonstrates, as a repository of a still vibrant Common Law tradition, its surprising continuity with the past.

Michael Bryant

References and Further Reading

Brewer, J., and J. Styles, An Ungovernable People: The English and their Law in the Seventeenth and Eighteenth Centuries, London: Hutchinson, 1980

Clanchy, M.T., Early Medieval England, London: The Folio Society, 1996

Holdsworth, A History of English Law, London: Methuen & Co., 1937

Hudson, J., The Formation of the English Common Law, London: Longman, 1996

Milsom, S.F.C., The Legal Framework of English Feudalism, Cambridge: Cambridge University Press, 1976

Idem, Historical Foundations of the Common Law, Toronto: Butterworths, 1981

Prall, S. E., The Agitation for Law Reform during the Puritan Revolution, 1640-1660, The Hague: Martinus Nijhoff, 1966

Stephens, Sir J.F., A History of Criminal Law of England, 3 vols., London: Macmillan & Co., 1883.

See also United Kingdom, Crime and Justice in the

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