Common Law Roots

Feudalism

King William of England introduced the Western Europe system of feudalism based on a series of rights, duties and obligations. With the monarch at the top of the feudal structure and owned all of the land, large pieces or manors were parcelled out to his lords and barons, who became vassels owing alliegence, managing local administration and military service. The lord’s vassels were the freemen who served in the lord’s army and serfs. Besides working their own land, they also worked the lord’s land. They gave shares of all they produced to the lord and the church.

Each monor lord was the sole judge in trials involving his own vassals. Inequity resulted from this system of justice. One lord might have found a vassal guilty of theft of another vassal’s property and sentenced him to death, hwile another lord’s vassal, guilty of the same offence, might only may only have been sentenced to make restitution. In response to this inequity, the king appointed a number of judges who travelled the countryside and held hearings, or assizes.

Judges met regularly in London to share experiences slowly forging common agreements from the discussions.  By the twelfth and thirteenth centuries there was more consistency. These decision consistencies became the basis of English Common Law, common to all people throughout England. When no custom existed, judges made their own decisions.

This common-law system was introduced to North America by the colonists who first settled here, and today, judges from the highest courts in many Canadian provinces still travel to the provincial counties. There they hold regional assizes to deal with the most serious criminal and civil offences.

Rule of Precedent (L. stare decisis- stand by earlier decision)

After a certain case in England and the resulting decision was common knowledge in the legal community, all judges who had cases with similar facts brought before the court would give similar decisions. By treating similar cases alike, judges established a standard and common system of judging offences throughout the country. At first, these case decisions existed only in the judges’ memories and were known as “unwritten law”.

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