This section is from the book "Popular Law Library Vol1 Introduction To The Study Of Law Legal History", by Albert H. Putney. Also see: Popular Law-Dictionary.
The exact state of the law relative to marriage in the early Norman period is a matter of much uncertainty. In spite of some authorities to the contrary, it is quite certain that no religious ceremony, or in fact, any ceremony of any kind, was required for a legal marriage. The so-called common law marriage was probably, for some centuries, the most common kind. Great stress was laid upon the question as to the present or future tense of the promise. The distinction between these two forms of common law marriage will be discussed under the subject of Domestic Relations. The contest between the common law courts and the ecclesiastical courts for jurisdiction did much to occasion confusion in this branch of the law. In many suits, the litigants would be compelled to go backward and forward between the two courts on account of the inability of either to render a decision covering the whole subject.
10 Pollock and Maitland's History of English Law, Volume I, page 128, First Edition.
Two forms of divorce existed in the early common law period. The absolute divorce, a vinculo matrimonii, and the divorce a mensa et thoro, corresponding closely to our present separate maintenance. The control of the husband over both the property and person of his wife, was absolute. The rights and duties of the parents toward their children were not very different from those existing at the present time. The extreme right of the father over the child existing in the Roman law never was introduced into England. Adoption was unknown in the early common law. Bastards were considered the sons of nobody, and had no right of support or inheritance. The common law never divided bastards into different classes with various degrees of rights, as was the case with all continental systems. For example, Las Siete Partidas, the most important Spanish code of the middle ages, divided this class of children into seven classes. Section 69. Early Contract Law.
Contract Law occupies a very unimportant place in the early Common Law. As in all other Teutonic law systems, we find only formal and real contracts. The consensual contract was absolutely unknown. Granville enumerates the following early real contracts: mutuum, commodatum, depositum, locatum, vadium and emptio-venditio. The first five were forms of bailment, the latter a form of bargain and sale the theory of which was very different from that existing at the present time.
In addition to the real contract the formal sealed contract was growing up at the time Granville wrote. The difficulty of establishing disputed facts before a court gave particular force to a sealed instrument, and this was long the only method of proof of any existing contract other than a real one. Debt was in early times, considered as in the nature of a real action.