Chapter 5

THE COMMON LAW:

UNCOMMON TOOL OF COLONIALISM

The Nature of the Common Law

Common law is a most uncommon tool of colonialism from the perspective

of legal history.
This system of law is supposed to spring from the spirit of the people; it is
not an imposition from above, it is an emanation from the subjects who
governed by it.
English law owes much of its stability, as well as much of its flexibility, to
the fact that the State has not attempted to arrogate to itself the role of
exclusive lawmaker.
John Wycliffe
- first reformer of the common law
- invoked nationalism as he railed against the
encroachments of the canon law and the Roman law into the
domain of English law.
- to him, Roman Law was heathen mans law
- men might well be saved though many laws of the Pope
had never been spoken
Roscoe Pound
- the common law is essentially a mode of judicial thinking,
a mode of treating legal problems rather than a fixed
body of definite rules.
- the strength of common law is its treatment of concrete
controversies, as the strength of its rival , the modern
Roman law, is in its logical development abstract
conceptions.
Americans used it in the Philippines not only to support its authority as a
colonial power but also to modify basic principles enshrined in the civilian
system left by the Spanish government.
Common law is the body of judge0made law based on the good sense of
the judges who can discern justice on a case-to-case basis.
William Blackstone described the common law as the general customary
law of the realm as interpreted by the royal judges, whom he called the
living oracles of the law.
Origins of the Common Law: English Antecedents

John Henry Wigmore

-divides the story of the common law into three periods
1st- saw the building of a common law 1100 to 1400
2nd- which rejected the Roman law 1400 to 1600
3rd- which covers the expansion and cosmopolitanization of
the system 1700 to 1900
Settlers who overran England after the fall in 476 A.D of the once mighty
Roman empire in the west. These were the Angles, Saxons, Danes and
the Norsemen belonging to the Teutonic tribes.
Origins of the common law system parallel that of the pre0Hispanic
customary law of our bears.
1st Anglo Saxon like our Malay and Indonesian ancestors, reached the
country by traveling in shallow draft keels.
2nd like most heathens, they were organized in tribes and while their
languages were dialects of common stock, they could not always
understand the language of another
3rd like most heathens, they were adept at fishing and sea craft.
4th they were later colonized by a foreign power coming from European
continent like our Filipino forbears.
Basic difference in two countries is that in England, the tribalism of the
Anglo-Saxons ultimately trumped feudalism, in the Philippines, it was the
other way around, feudalism overwhelmed the tribalism of the Filipinos.
One other common factor in the legal history of the English and the
Filipino was the introduction of Christianity.

The Rise of Property Rights Under Feudalism

In the Philippines, institution of feudalism became the basis of land righst

in England.
Feudalism became the dominant political ideology and social system un
the West.
Maitland believes that it was feudalism which saved the Western world
from the ravages of the barbarian invasions.
Feudalism, as a system of social ordering consisted of a huge pyramid
with the king on the top of the pyramid. He divided his kingdom into
several districts called fiefs
The Lord or seigneur derived his power from two sources: from the
imperial authority of a distant king and from his possession of the land.
 Jencks point out the feudalism had two well-marked effects in legal
history
1st it stamped law as a local institution
2nd it gave rise to judgment by pears, or trial by jury.
Normans introduced the medieval concept of feudalism into England.
Feudalism in England as introduced by William the Conqueror attained
sufficient uniformity to give rise to a body of doctrine which formed part of
the common law, as administered by feudal courts.
In Philippines, the datus or the council of elders rendered justice.

The Influence of the Canon Law

Canon law began as Maitland puts it as unlawful law for the early
Christian societies had an illegal if not a criminal purpose.
Canon law as the Popes had to put it before their subjects, expressed the
will of the Lord and was the product of right reason and perceived wisdom
of the ages and written in words of fire in the hearts of men
By 12th and 13th century, the Catholic Church had grown strong enough to
dominate the power of the barbarian kings,
Canon law had its own courts, own judges, own practitioners and own
rules of practice and procedure.

Development of the Law Merchant

Other legal system that managed to creep into the common law was the
law of merchant , which was founded on Roman law.
Opened up avenues for the development of customary law of international
trade.

Legislation by the Parliament

Legislation under the common law system started from the practice of
kings in the 13th century of giving instructions to their judges who would
roam the countryside and institute new methods of procedure or bring new
classes of men and things under their jurisdiction.
The oldest statute of the realm and the most prominent is the Magna Carta
what Maitland calls the grand compromise.
Making of statutes came with the establishment of Parliament in 1295,
which fixed finally and for all time the right of shire and town
 representation, although for a few years the system admits of some
modification
Law is discovered and not made by the Parliament, insists the historians
even if it lays down new rules of conduct.

The English Concept of Equity

Equity as a remedy against Draconian enforcement of law is as old as

Aristotle
Law is always a general statement but there are cases which are not
covered in a general statement.
Roman law adopted this concept to mitigate the harshness of the law,
emphasizing the spirit, rather than the letter of general law.
The English followed the same course in the development of the common
law.
During the 12th and 13th centuries, they introduced writs which amounted
to and indirect but authoritative statement of the common law.
There are 14 maxims of equity reflecting its duality in terms of natural
justice captioned as mechanical rules.
1. He that will have equity done to him, must do it to the same person.
2. He that hath committed inequity shall not have equity.
3. Equity is equity.
4. It is equity that should make satisfaction, he who received the
benefit.
5. It is equity that should have satisfaction, he who sustained the loss.
6. Equity suffers not a right to be without remedy
7. Equity relieves against accidents.
8. Equity prevents mischief.
9. Equity prevents multiplicity of suits.
10. Equity regards length of time
11. Equity will not suffer double satisfaction to be taken.
12. Equity suffers not advantage to be taken of penalty or forfeiture,
where compensations can be made.
13. Equity regards not the circumstance but the substance of the act
14. Where equity is equal, the law must prevail

Common Law Importation Into the United States

America at the time that the common law was imported from England was
the New World, and it was new in more ways then one.
 England was the old world with its deep-seated political traditions.
America was an open frontier and was Tabula Rasa.
Roscoe Pound lists down sixfactors which have contributed to shape the
American law.
1. an original substratum of Germanic legal institutions and jural
ideas
2. the feudal law
3. Puritanism
4. the contests between the courts and the crown in the 17th
century
5. the conditions of pioneer or agricultural communities in America
in the first half of the 19th century.
6. the philosophical ideas with respect to justice , law and the
state that prevailed in the formative period in which the English
common law was made over for the Americans by courts.
the two growing and formative periods of Anglo-Saxon law are the
classical common law period from the end of 16th and the beginning of the
17th century and the period of the legal development in the US that came
to an end with the Civil War in 1863.