From: lawbkwn@buacca.BITNET (Yaakov HaMizrachi)
Subject: Origins of English Common Law
Organization: The Internet
Date: Mon, 13 Apr 1992 01:17:03 GMT

Unto the good people of the Rialto, and
most especially Tim, greetings from Yaakov.

I posted:
"Henry II initiated the Common Law in
1176, not 1186."

To which Tim replied:
"*Nobody*, much less Henry II, initiated the
Common Law in 1176 or any other time."

In one sense, my lord, you are correct,
Henry II initiated the Common Law in 1176,
with the issuance of the writ of novel
the writ of novel deseissen.
I am not sure why you maintain that no
one 'initiated' the common law. According
to Pollock and Maitland * A History of English
Law*:
"If we try to sum up in a few words those results
of Henry's reign which are most durable and fruitful,
we may say that the whole of English Law is
centralized and unified by the institution of a
permanent court of professional judges, by the
frequent mission of itinerant judges throughout the
land, by the introduction of 'inquesti or
'recognition' and the 'original writ' as normal
parts of the machinery of justice."
This sounds, to me at least, like the distinguishing
features of the common law and the factors
that made it 'common' throughout England.

I also wrote:
"Novel disseisen contested ownership
of land."
To which you replied:
"No, it didn't.  It alleged that someone
with seissin had been dispossed of the
land, and didn't in anyway reach ownership
(which was the province of the writ of right.)

which I have stated elsewhere to be a treacherous
guide.  However, I believe the question of ownership
was settled by the 'Grand Assize,'  which removed
the question of land from the fuedal to the kings court.
This assize also allowed any defendant to
refuse trial by battle and put the issue to the king's
justice and local jury. Pollock and Maitland vol I p.147.

Tim concludes:
"Where are you 'learning' all this stuff anyway?"
I first studied English Constitutional History under
professor William Jordan at Princeton University.
The errors are mine, not his.  A result of passing
years and failing memory.
Secondary sources, alas, remain in my parents'
basement.  Fortunately, my law library has a copy
of Pollock and Maitland's excellent treatise, *The
History of English Law*.  If I manage to dig
up my old sources, I can site Stephen and Marcham's
*Sources of English Constitutional History* (selected
primary sources.)  I've also read a bit of Brachton
(in translation, I regret never having learned Latin.)

So, relying on Pollock and Maitland, I briefly
trace the origins of English Common Law.
The Norman invasion constituted: "a catastrophe
which determines the whole future history of
English Law." Vol. I p.79  The authors
trace the development of norman and English
law, preserved by William in the Domesday boke
and encodified in the Code Henrici of Henry I.
However, true English common law began in
1164, with the Assize and Constitutions of Clarenden
P&M Vol I p.137.  This act, wresting the
law away from both Church and nobility, served
as the recognizable starting point and initiation
of the Common Law. P&M Vol I p.136.  Following
this with the writ of Noveil Desessin 1166, the Inquiry
of the Sherrifs 1170, and the Writs of Mort d'Ancestor,
Grand Assize, and the New Assize of Clarendon, and
the assize of darrein presentment, Henry II created
the fundemental framework of the Common Law.
P&M p.137, 146-149.  Certainly
Trial by Jury, the hallmark of English Common law
and its primary difference from Civil law, was
"introduced by Henry II as part of the usual
machinery of civil justice." P&M vol I p.149.

If I may ask, most learned Tim, why do you
maintain that no one 'initiated' the Common
Law? Do you believe that so radical a departure
from the accepted judicial norms of the time
'just growed?'  If so, I should be interested
in what scholars advance this theory.  I have never
heard it, and should wish to be enlightened.

In Service to scholarship,
Yaakov HaMizrachi