Common Law, in England, is the ancient customary law of the land. Before the Norman Conquest, the rights of an Englishman were determined mainly by the customs of the manor, borough, or shire in which he lived. After the Conquest, the king's judges began to go their circuits in every part of the country, doing justice according to the custom of the realm or the common law. In some points they kept to the ancient local customs, in others again they introduced new rules. Primo-geniture, e.g., is a rule introduced by the influence of the judges; the ancient English rule of equal division survives only as the 'custom of Kent' under the name of Gavelkind (q.v.). The custom of certain ancient boroughs, which gave the land to the youngest son, survives under the name of Borough English (q.v.). The custom of a place, or of a body of persons, is allowed to supplement or modify the common law if it has been observed from a time 'whereof the memory of man runneth not to the contrary.' Legal memory does not go back beyond the first year of the reign of Richard I., but evidence may be given to impugn the 'immemorial' character of a local custom by showing that it had its origin later than that year.
Even in making new rules, the judges never assumed to legislate; they professed to expound the good customs of the realm, and in applying the rules of common law, each generation of judges was guided by the decisions of its predecessors. Decisions followed in a series of subsequent cases acquired special authority, and were quoted as leading cases. The law fixed by custom and by judicial decision could only be set aside or amended by an act of parliament. But without setting aside the law, courts of equity, and especially the Court of Chancery (q.v.), framed rules of their own, which enabled them to prevent the stricter rules of common law from being used in defence of injustice. By the Judicature Acts (q.v.), courts of common law and equity were made parts of one supreme court; the two systems are administered concurrently; where there is any conflict between equity and common law, the rules of equity prevail. See EQUITY.
English settlers going to an uncivilised country take with them 'as much of the common law as the nature of things will bear.' In Canada, Australia, &c., and in the United States, the historical basis of the law is the same as in England. In Scotland, and in some other countries, the term common law is used in a sense analogous to its English meaning.
THE COURTS OF COMMON LAW.—The superior courts of Common Law in England had their origin in the Curia Regis of the early Norman kings, the chief officers of which were the Chief-justiciar, the Chancellor, and the king's justices. The justices sat in the King's Bench to supervise the proceedings of inferior courts and corporations, and to deal with criminal matters directly concerning the crown. In the Common-Bench or Common Pleas they held pleas between subject and subject. In the Exchequer they sat, as Barons of the Exchequer, to decide revenue cases. At first all these courts followed the king, to the great inconvenience of suitors. The Common Pleas were fixed at Westminster by Magna Charta; and in course of time the three superior courts of Common Law were all established on one side of Westminster Hall, each court having its own chief and four (afterwards five) puisne or junior judges, who were called justices in the King's Bench and Common Pleas, and Barons in the Exchequer. On the passing of the Judicature Acts (1873-76), the three courts became divisions of the High Court of Justice. The offices of Chief-justice of the Common Pleas and Chief-baron of the Exchequer are now abolished, and the three divisions are consolidated in the Queen's Bench Division. The Lord Chief-justice of England is the presiding judge; he is appointed by the crown on the advice of the prime-minister, and his salary is £8000. There are fourteen puisne justices, appointed by the crown on the advice of the Lord Chancellor, each of whom has a salary of £5000. The sittings of the Division are held at the Royal Courts in London; the judges also try cases on their circuits and at the Central Criminal Court. The jurisdiction of the Division includes all special authorities formerly belonging to any of the old Common Law Courts. It takes, e.g., appeals from Revising Barristers (q.v.) which formerly went to the Common Pleas, and revenue cases which belonged to the Exchequer. Appeals from any of the old Common Law Courts went to the judges of the other two courts, sitting in the Exchequer Chamber, and from them to the House of Lords. Appeals from the Queen's Bench Division now go to the Court of Appeal, and thence to the House of Lords.
Besides the superior courts, there are many inferior courts which exercise a limited common-law jurisdiction. Each manor has its own courts, but except in regard to Copyholds (q.v.), manorial jurisdiction has been superseded by local courts of modern origin. The same remark applies to the Hundred Court and the ancient County Court. The Court of Common Pleas in Lancaster and the Court of Pleas in Durham, now form part of the High Court. The modern County Court (which ought more properly to be called a district court) has a common-law jurisdiction; and several statutes contain provisions for remitting the less important class of common-law actions to the County Court for trial.
Of Borough Courts some (as, e.g., the Court of Hustings in London) are obsolete; others (as, e.g., the Mayor's Court in London and the Court of Passage in Liverpool) are still of importance. The City of London Court is framed on the model of the modern County Courts. The Court of the Cinque Ports is held before the mayor and jurats of each port; from them appeals are taken to the Lord Warden's Court, and thence to the Queen's Bench Division. Courts of Request for the recovery of small debts existed in several boroughs; they are now obsolete, as also is the Court of Pie Poudre, or dusty foot, held by the steward of a manor to which a market belongs, for the immediate decision of questions arising in the market. There are still courts of some importance, established for the benefit of privileged bodies of persons. See, as to miners, STANNARY COURTS; as to Oxford and Cambridge, see UNIVERSITY.