Instruct: Given a question, retrieve relevant passages that answer the question.
Query: Where did common law originate?
The common law—so named because it was "common" to all the king's courts across England—originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066.[10] The British Empire spread the English legal system to its historical colonies, many of which retain the common law system today. These "common law systems" are legal systems that give great precedential weight to common law, and to the style of reasoning inherited from the English legal system.[11][12][13][14]
After "Donaldson v Beckett", disagreement continued over whether the House of Lords affirmed the existence of common law copyright before it was superseded by the Statute of Anne. The Lords had traditionally been hostile to the booksellers' monopoly and were aware of how the doctrine of common law copyright, promoted by the booksellers, was used to support their case for a perpetual copyright. The Lords clearly voted against perpetual copyright, and eventually an understanding was established whereby authors had a pre-existing common law copyright over their work, but that with the Statute of Anne parliament had limited these natural rights in order to strike a more appropriate balance between the interests of the author and the wider social good. According to Patterson and Livingston there remains confusion about the nature of copyright ever since. Copyright has come to be viewed both as a natural law right of the author and as the statutory grant of a limited monopoly. One theory holds that copyright's origin occurs at the creation of a work, the other that its origin exists only through the copyright statute. In 1834 the US Supreme Court ruled in Wheaton v. Peters, a case similar to the British Donaldson v Beckett of 1774, that although the author of an unpublished work had a common law right to control the first publication of that work, the author did not have a common law right to control reproduction following the first publication of the work.
Hurt was married to Mary Beth Hurt from 1971 to 1982. In the 1980s, Hurt was involved in a lawsuit with Sandra Jennings, who alleged that the two shared a common-law marriage. While he was still married, Hurt and Jennings had begun a relationship in Saratoga Springs, New York, in 1981. Jennings became pregnant in the spring of 1982 which precipitated Hurt's divorce from Mary Beth Hurt, after which Hurt and Jennings relocated to South Carolina, a state that recognized common-law marriages. Hurt and Jennings remained officially unmarried, later separated and Jennings sued him in New York, seeking recognition of the "marriage" under South Carolina law. The New York court, which did not recognize common-law marriage and was reluctant to recognize a common-law marriage originating in South Carolina, found in Hurt's favor that no common-law marriage existed.
The idea of a trust originated during the Crusades of the 12th century, when noblemen travelled abroad to fight in the Holy Land. As they would be away for years at a time it was vital that somebody could look after their land with the authority of the original owner. As a result, the idea of joint ownership of land arose. The common law courts did not recognise such trusts, and so it fell to equity and to the Court of Chancery to deal with them, as befitting the common principle that the Chancery's jurisdiction was for matters where the common law courts could neither enforce a right nor administer it. The use of trusts and uses became common during the 16th century, although the Statute of Uses "[dealt] a severe blow to these forms of conveyancing" and made the law in this area far more complex. The court's sole jurisdiction over trusts lasted until its dissolution.
Within academic theories of trust law, there have been at least three main strands of discussion that have preoccupied authors in recent years. First, because trust law derived from the Lord Chancellor and courts of equity, separate from the common law (at least notionally) there has been a persistent debate over the extent that common law and equity should be "fused". Before the Supreme Court of Judicature Act 1873 and 1875, influential judges and authors, such as Edward Coke, and William Blackstone, had disapproved the notion that equitable jurisdiction was in some way distinct from the law. In the 19th century, Charles Dickens' books had heaped enough ridicule on the Victorian Chancery judges to impel reform. The court systems were merged, and if there was a conflict the precedents deriving from equity would prevail. But there remained disagreement about whether this was meant to achieve fusion in "substance", rather than merely a fusion of "procedure". The minority view, particularly well represented in Australia, is that equity represents a distinctive set of principles and its own logic, as manifested in the institutions it created, such as the trust. The majority view, however, is that there is no good reason why, as Andrew Burrows has written "We do this at common law but that in equity" when the situations are functionally identical, to treat like cases alike. If rules in equity, including trust law, did one thing and common law did another, either the common law was wrong or equity was wrong. One of the rules should be changed. Since the House of Lords and the Supreme Court declared it would overrule previous judgments that did not meet the evolving requirements of contemporary justice, the notional primacy of equity over common law was effectively obsolete. Even if a precedent in equity did still prevail over common law, either or both could be overruled in the interests of justice. In practice, the debate about the fusion of law and equity has waned in importance compared to discussion of how to fuse interpretation of judge made law with statutory regulation (for instance in the context of pensions or investment), and how to fuse national law with international norms, in an emergent system of global justice.
The court started by analyzing and rejecting Atwater's argument that the common law did not grant authority to police officers to execute warrantless arrests for misdemeanors that did not involve a breach of the peace. The court, recognizing the lack of unanimity of a common law rule, found that the historical common law had a "decided, majority view that the police did not need to obtain an arrest warrant merely because a misdemeanor stopped short of violence or threat of it" and hence the argument had failed.
Tort law has been modified by statute to expand protection, and limit liability. Many tort law statutes have their origins in common law, and are interpreted through common law. These include worker's compensation, insurance law, consumer protection laws, labor law, products liability law, energy law, compensation to relatives on death, anti-discrimination law, and other miscellaneous and difficult-to-categorize areas of law. This may include statutory law or administrative regulation that define, aid interpretation (construction), provide means to calculate quantum of damages, clarify personal responsility, or replace torts with their origins in common law.
The "Erie" decision did not put an end to other types of federal common law. Several areas of federal common law remain, in two basic categories: areas where Congress has given the courts power to develop substantive law, and areas where a federal rule of decision is necessary to protect uniquely federal interests.
In common law, real property was property that could be protected by some form of real action, in contrast to personal property, where a plaintiff would have to resort to another form of action. As a result of this formalist approach, some things the common law deems to be land would not be classified as such by most modern legal systems, for example an advowson (the right to nominate a priest) was real property. By contrast the rights of a leaseholder originate in personal actions and so the common law originally treated a leasehold as part of personal property.
The Lord Chancellor had, since the 15th century, been tasked with administering estates where the estate was to be used for charitable purposes. In "Bailiff of Burford v Lenthall", Lord Hardwicke suggested that the jurisdiction of the Court over charity matters came from its jurisdiction over trusts, as well as from the Charitable Uses Act 1601. Carne suggests that, as the Court had long been able to deal with such situations, the 1601 act was actually just the declaration of pre-existing custom. This is illustrated by the Chancellor's original jurisdiction over feoffments to uses, which came from his original status as a clergyman, as charity had been originally enforced by the Church and the ecclesiastical courts. Essentially, an owner of land could dispose of it by granting the right to use it and collect fees to another, not just by selling it. This was not valid at the common law courts but was in the Court of Chancery; the Lord Chancellor is reported as having said, in 1492, "where there is no remedy at common law there may be good remedy in conscience, as, for example, by a feoffment upon confidence, the feoffor has no remedy by common law, and yet by conscience he has; and so, if the feoffee transfers to another who knows of this confidence, the feoffor, by means of a subpoena, will have his rights in this Court". After the reign of Edward IV, if the charitable land were to be sold (or land were to be sold to create the charity) the Court of Chancery was the only place this could be done, as ecclesiastical and probate courts did not have a valid jurisdiction.
Common law tracing is where the claimant seeks to identify property that belongs to him at common law. This is where physical possession of the property passes, but not legal ownership. The problem with common law tracing is that the property must be identifiable; if it has been mixed with other property, such as money paid into an account with other money from a different source, it cannot be successfully recovered. It is also essential that the involuntary transfer did not also transfer the legal title, nor any succeeding transfer. If this has happened, the property is also not recoverable under the common law. Someone with an equitable interest in the property but no legal title, as in "MCC Proceeds v Lehman Brothers", cannot recover the money under common law. Due to these limitations, "many leading academics and judges" have suggested that common law tracing should be completely merged with equitable tracing.
The common-law principle of "riparian ownership" dominated the South African water dispensation until 1998. Unlike so much of South African common law (and indeed most of the South African common law relating to water), the principle did not originate in the Netherlands; it developed with reference to English law. The twofold foundations of South African water law, Roman-Dutch and English, were not best suited to the South African context, where water is a scarcer resource.
The term felony, in some common law countries, is defined as a serious crime. The word originates from English common law (from the French medieval word "félonie"), where felonies were originally crimes involving confiscation of a convicted person's land and goods. Other crimes were called "misdemeanors". Many common law countries have now abolished the felony/misdemeanor distinction and replaced it with other distinctions, such as between indictable offences and summary offences. A felony is generally considered a crime of high seriousness, but a misdemeanor is not.
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 (the two 'Laws' in the original Bachelor of Laws, which thus became the Bachelor of Civil Law when the study of canon law was barred after the Reformation) and for the purpose of the study of philosophy or history only. The apprenticeship program for solicitors thus emerged, structured and governed by the same rules as the apprenticeship programs for the trades. The training of solicitors by a five-year apprenticeship was formally established by the Attorneys and Solicitors Act 1728. William Blackstone became the first lecturer in English common law at the University of Oxford in 1753, but the university did not establish the program 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.
Degrees of murder did not exist under common law. Most states have statutorily created at least two degrees of murder. Usually, a person only commits first-degree murder when he has express malice. If he has any other type of malice, he usually commits second-degree murder. American law reformed old world, common law practices during the ages of Henry VIII where even petty thieves were executed. American law generally categorizes the level of punishment and created lesser sentences, as opposed to the common law "one size fits all," hence the first, second, third and fourth degree murder with different level of punishment. (See voluntary manslaughter)
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, the common law is crucial to understanding almost all important areas of law. For example, in England and Wales, in English Canada, and in most states of the United States, the basic law of contracts, torts and property do not exist in statute, but only in common law (though there may be isolated modifications enacted by statute). As another example, the Supreme Court of the United States in 1877,[63] held that a Michigan statute that established rules for solemnization of marriages did not abolish pre-existing common-law marriage, because the statute did not affirmatively require statutory solemnization and was silent as to preexisting common law.
Outside of confederation, the Territory of Guam does not recognise common law marriage.[25] 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.[26]
The Court next considered whether it should read the word "burglary" in § 924(e) as the common law did. This approach had some appeal; after all, all states' definitions of "burglary" included the common-law definition of burglary — breaking and entering of a dwelling at night with the intent to commit a felony once inside. But the difficulty with this approach was that modern definitions have strayed far from the common-law definition. For instance, most states allow entry without "breaking," allow burglary to occur during the daytime, and require no felonious intent once inside. "The arcane distinctions embedded in the common-law definition have little relevance to modern law enforcement concerns." Conversely, few acts that fall under the modern definition of "burglary" would also count as burglary under the common law. And although the Court sometimes applied the maxim that undefined statutory terms would carry the common-law definition, it reasoned that that maxim would not apply where the common-law definition was outmoded. For these reasons, the Court rejected the idea of reading § 924(e)'s definition of "burglary" as the common-law definition.
IIED was created in tort law to address a problem that would arise when applying the common law form of assault. The common law tort of assault did not allow for liability when a threat of battery was not imminent. A common case would be a future threat of harm that would not constitute common law assault, but would nevertheless cause emotional harm to the recipient. IIED was created to guard against this kind of emotional abuse, thereby allowing a victim of emotional distress to receive compensation in situations where he or she would otherwise be barred from compensation under the common law form.
Similar problems of proof may arise if the parties to a common law marriage were not actually domiciled in the state where they lived at the time they sought to contract the marriage; or they may have thought they were contracting a marriage but they did not actually conform to the law of the state in which they were living. The essential question is whether the marriage was validly contracted under the laws of the jurisdiction where the parties allege their marriage was contracted.
In their decision in "Makdessi" the Supreme Court reviewed the historical origins of the rule against penalty clauses in contracts. The law originated in the fifteenth century in relation to "defeasible bonds" (sometimes called penal bonds) which were a contractual promise to pay money, which might be discharged if certain obligations were performed (and if the obligations were not performed, then the payment terms under the bond could be enforced). However the courts of equity regarded these as what they really were - security for performance of the underlying obligation - and were prepared to restrain enforcement of such bonds where the defaulting party paid any damages due at common law. In time the courts of common law began to mirror this approach and stay any proceedings on such bonds where the defendant gave an undertaking to pay damages together with interest and costs. The position of the common law courts was adopted and codified in the Administration of Justice Act 1696 and later the Administration of Justice Act 1705. Accordingly, procedurally relief in relation to such bonds was thereafter administered entirely by the common law courts without intervention by the courts of equity. However, the courts of equity began to develop concurrent remedies for relief from forfeiture. With the decline of the use of defeasible bonds the procedural mechanics became increasingly applied to liquidated damages clauses.
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.
In common law, several types of action existed with respect to deprivation of possession (being subdivided into the wrongful taking of chattels and the unjust detention of them, even where the original taking was lawful):At common law, the ordinary action for the recovery of goods wrongfully taken was originally one of detinue, but no means of immediate recovery was possible until the action was tried. Replevin arose to deal with the matter of the illegal distress of goods for rent or "damage feasant", in order to procure their restoration to the owner. Illegal distress has been held to occur where:Replevin will not lie where if any part of the rent claimed was due, but this defence is not effective where the only rent claimed by the landlord is not recoverable by distress.
ancient constitutional records). The procedure in a wager of law is traced by Blackstone to the Mosaic law, Ex. xxii. 10; but it seems historically to have been derived from the system of compurgation, introduced into England from Normandy, a system which is now thought to have had an appreciable effect on the development of the English jury. It also has some points of resemblance, perhaps some historical connexion, with the "sponsao" and the decisory oath of Roman law, and the reference to oath of Scots law (see Oath). The use of the oath instead of the real or feigned combat - real in English law, feigned in Roman law - no doubt represents an advance in legal development. The technical term "sacramentum" is the bond of union between the two stages of law. In the wager of law the defendant, with eleven compurgators, appeared in court, and the defendant swore that he did not owe the debt, or (in detinue) that he did not detain the plaintiff's chattel; while the compurgators swore that they believed that he spoke the truth. It was an eminently unsatisfactory way of arriving at the merits of a claim, and it is therefore not surprising to find that the policy of the law was in favour of its restriction rather than of its extension. Thus it was not permitted where the defendant was not a person of good character, where the king sued, where the defendant was the executor or administrator of the person alleged to have owed the debt, or in any form of action other than those named, even though the cause of action were the same. No wager of law was allowed in "assumpsit," even though the cause of action were a simple debt. This led to the general adoption of "assumpsit " - proceeding originally upon a fictitious averment of a promise by the defendant - as a means of recovering debts. Where a penalty was created by statute, it became a common form to insert a proviso that no wager of law was to be allowed in an action for the penalty. Wager of law was finally abolished in 18 33 (3 & 4 William IV. c. 42).