Definition
Common law procedure refers to the body of rules, practices, and statutory reforms governing the conduct of litigation in the common law courts — as distinguished from courts of equity, admiralty, or ecclesiastical jurisdiction. The term carries two distinct but related senses:
1. The historical procedural system of the English common law courts (King's Bench, Common Pleas, and Exchequer), characterized by rigid pleading forms, the writ system, and technical requirements that controlled how actions were commenced, joined, and tried.
2. The series of English parliamentary reforms — principally the Common Law Procedure Acts of 1852, 1854, and 1860 — that systematically dismantled the archaisms of that historical system, modernizing pleading, discovery, and trial practice in the common law courts.
The first sense names a procedural tradition. The second names specific legislation that substantially ended it.
Common Confusion
The phrase is easily misread as a generic reference to procedural law generally, or to any procedure derived from common law tradition. In context — and in virtually every historical legal dictionary — "common law procedure" is a term of art pointing specifically to the pre-reform English system and the Acts that replaced it. A researcher encountering the phrase in a nineteenth-century treatise or digest should not assume it refers to American civil procedure or to any jurisdiction-neutral concept. The confusion is compounded by the fact that the reforms introduced by the Common Law Procedure Acts were themselves absorbed, in modified form, into later codes — including the English Judicature Acts of 1873–1875 — making the procedural tradition the Acts replaced a distinct historical object.
Recognized Forms
/SUBTYPES
The Common Law Procedure Acts form a sequence:
- Common Law Procedure Act 1852 (15 & 16 Vict. ch. 76): The foundational reform. Abolished most of the ancient forms of action and simplified pleading requirements. Permitted amendment of pleadings and introduced new mechanisms for interlocutory proceedings.
- Common Law Procedure Act 1854 (17 & 18 Vict. ch. 125): Extended reform to trial practice, introduced compulsory arbitration provisions, and gave common law courts limited equitable jurisdiction over injunctions and mandamus.
- Common Law Procedure Act 1860 (23 & 24 Vict. ch. 126): Further amendments, particularly addressing defects identified in the operation of the 1852 Act.
Together these Acts represent the principal legislative response to decades of criticism of common law pleading — most prominently from Benthamite reformers — before the comprehensive merger of law and equity effected by the Judicature Acts.
Why It Matters in Research
The phrase "common law procedure" is a period marker. When encountered in sources from roughly 1700 through the 1870s, it signals the pre-reform world: forms of action, special pleading, the distinction between general and special demurrers, and procedural traps that could defeat a meritorious claim on purely technical grounds. When encountered in sources from 1852 onward, it may refer instead to the reformed system under the Acts, or to commentary on what the Acts changed.
American researchers face a particular trap. American states began adopting Field Code-style pleading reforms (starting with New York in 1848) at roughly the same moment the English Acts were being passed. American and English reform proceeded on parallel tracks but through different instruments. A treatise describing "common law procedure" written in New York in 1860 may be describing something quite different from an English treatise of the same year using the same phrase.
The Acts also matter for understanding what common law courts could not do before 1854 — specifically, grant equitable relief. The 1854 Act's grant of limited equitable jurisdiction to common law courts was a significant doctrinal shift and generated its own literature. Corpus sources discussing jurisdiction over injunctions in the mid-Victorian period need to be read against this background.
Finally: the procedural tradition the Acts reformed — the forms of action, the writ system, pleading rules — remains directly relevant to understanding substantive common law categories that evolved in procedural containers. Trespass, case, trover, assumpsit, and replevin are not merely historical curiosities; their procedural origins shaped the substantive law that survives them.
Historical Dictionary Support
Rapalje and Lawrence address the term under "Acts," defining it by reference to the three statutes (1852, 1854, 1860) with citation to the regnal year chapter numbers — a characteristically precise approach for a dictionary aimed at practitioners who needed to locate the actual text. The entry also appends a cross-reference to Mozley and Whiteley for the companion definition of "common lawyer." This structure reflects the dictionary's assumption that the primary research question is identification and location of the statutory text, not conceptual explanation.
What Rapalje and Lawrence do not address — and what no single historical dictionary entry fully captures — is the significance of the Acts as a transition point. The entry treats the Acts as an accomplished fact, not as the culmination of a reform movement or the precursor to the Judicature Acts. Researchers relying solely on the dictionary entry will understand what the Acts were called and where to find them; they will not understand what the Acts ended or what they set in motion.
Encyclopedia Cross-Reference
The Law Mind Civil Procedure & Evidence Encyclopedia: Federal Common Law — Remaining Enclaves After Erie (civpro_211) — relevant for understanding the post-Erie distinction between federal common law and procedural tradition.