Origins of the Common Law

by Arthur R. Hogue

This introductory analysis of the origin and early development of the English common law provides an excellent grounding for the beginning student as well as the experienced scholar of legal history. Arthur R. Hogue (1906–1986) was Professor of History at Indiana University.

Genres: Law, History, Nonfiction, Medieval

288 pages, Paperback

First published December 1, 1974

Reviews

[Frank Stein · Rating 5 out of 5]

I had long wanted to obtain a better understanding of the origins of the British and American systems of common law. Despite their general and admirable tendency to innovate and change in the face of new circumstances over the centuries, many of the forms and the substances of our legal system are still obviously rooted in the ancient practices of feudalism, and so I thought a study of the law's earliest periods would help me better understand its subsequent evolution.

Unfortunately, every book I found on the subject, even primers, seemed to assume a comprehensive understanding of feudal forms and legal practices. I had recently quit trying to slog through Theodore Plunkett's mammoth and mistitled "A Concise History of the Common Law," when it became clear I needed more background. This book, however, provided that background and more.

Written back in 1966, the book takes the reader from the origins of the feudal legal system beginning with Henry II's coronation in 1154, and down through the death of that premiere legal innovator Edward the I in 1307. It first provides a general political history of those years, then moves on to a general description of feudalism (being a "vassal" actually meant you were in pretty good standing!) and on to a discussion of the different courts and writs that were so important in the pleadings of the era. The author shows, for instance, how everyone's life was determined by the now obsolete difference between "free" and "unfree" tenure of the land they lived on. The former was held by vassals of the king or of those vassals' vassals, the later by "villeins" who, as one commentator explained, were defined by the fact that when the fell asleep at night they had no idea what they were doing in the morning, since they were always at the beck and call of their lords.

This book also explains the origins of many of the legal terms that have survived into the modern day, such as fee simple, recognizance, assize, seisen, and more. It also demonstrates the benefits of deep historical knowledge for a better understanding of the present.

[W · Rating 5 out of 5]

Sometimes a book surprises you. This one happens to be the clearest account of the medieval English legal and political system that I have seen (having taught the subject area). 5 stars for admirable breadth and lucidity.

[Robert · Rating 5 out of 5]

This is a great book to start with if you want to read further into the history of English law and the common law (and the early origins of the American legal system). The writing is engaging, and Hogue covers a lot of ground, focusing largely on the Angevin era. What I also liked is Hogue's discussions, though sometime brief, of culture, governing philosophy, and daily life of English peoples to supplement the legal history.

It is a wonderful book, a good reference, and the a perfect starting point.

[Clyde Macalister · Rating 4 out of 5]

This offers a great historical outline (as opposed to a complete history) of the development of English common law under the Angevin kings and up to Edward I, and would recommend it as the very first book that one should read if one aims to study the subject in depth while starting from a position of complete ignorance -- or even as a refresher if you are already somewhat to greatly knowledgeable about the material covered. Just understand the author intended it as an introduction to understanding common law (as it has developed not just in Britain but America and other Anglosphere countries) as it currently exists (among both lawyers and layman alike) by giving the historical context to its present form, so don't expect a complete history of the Angevin period of common law from this book alone.

It excels in accounting for the cynical political strategizing of the English kings, barons, and ecclesiastic officials as they maneuvered in their mutual contest for the share of power, and how this helped "standardize" the system from the top-down. It moreover supplies a learned outline of the social and class conditions that influenced its development from the bottom-up, including a description of the relationships between free (voluntary) serfs to lords, unfree (coerced) serfs to their lords, etc., plus some discussion about how economic conditions of the time guided further continuity and change alike within the structure of the system.

The author, moreover, empirically demonstrates the understanding of English common law, in its essentials, as a system of law that has heavily emphasized tradition and custom and is skeptical of radical or revolutionary deviations from that custom though has remained sufficiently open-minded as to allow for adding modifications on top of that custom when perceived necessary (of course, the question of "perceived as necessary" by whom and based on what criteria is a discussion for another time); that has aimed to limit government in general and monarchs in particular in their dealings with others; and that at least historically relied on the heavy involvement of the crown.

My only noteworthy criticism of the book is as follows: it is misleading to say that the Angevin kings "created" common law -- misleading, but not exactly wrong. The author hardly if at all mentions the Anglo-Saxon tradition of "customary law" that emerged and persisted for centuries among the English prior to the Norman Conquest. The Angevin kings didn't pull the basis of common law from some cosmic vacuum but built on top of, standardized, and centralized the Anglo-Saxon customary law. The descriptor "common" to that system reflects that political centralization. You wouldn't really know of any of that reading this book alone. Again, "the Angevin kings created common law" is not technically wrong, just misleading.

(From my view, this centralization of the Angevins should be considered a net negative development that tended to magnify the worst features of the Anglo-Saxon customary law while restricting its more positive elements. However, one should not go for this book with the intent of offering a "prescriptive" account of common law, and so I won't delve further into that here.)

On the whole, very glad I read this -- very informative and yet a short read all at once. Before too very long I will be going back over my copy to underline points of emphasis and write notes in the margins.

[Jeffrey Williams · Rating 4 out of 5]

The Origin of English Common Law is a very confusing and arduous topic of study. Hogue does a great job in simplifying the complex into terms that non-lawyers can understand. He has a solid grasp of the topic and exhaustive references.

The problem I have with this book is in its organization. There are too many sections where we are treated to redundancy as a result of him jumping around a bit. That made for sections of brief confusion or all out boredom.

Outside of this one minor complaint, I found it to be a fine read.

[Daniel Elliott · Rating 3 out of 5]

Honestly kind of a pain to read. I’d heRd it highly praised and was exciting, but it was very hard to follow. Seemed to jump around too much. Lots of political history, which was fun, but didn’t always seem relevant. Then a little too much wandering through various fields of complicated stuff without enough good high level summarization/abstraction.

[Michael I · Rating 3 out of 5]

Great introduction to the history of common law. Surprisingly interesting. Who doesn’t want to learn about the ancient writs of Replevin, Assusmpit, Detinue, Debt, Convenant, Case, Trespass, Ejectment, etc. Old english words are so cool: scutage, feoffment, frankalmoin, estoppel, champerty, burgage, villein.

[Stacy Rogers · Rating 4 out of 5]

Great introduction for people curious about common law.

[Craig Bolton]

ORIGINS OF THE COMMON LAW by ARTHUR R HOGUE (1986)