Outline of English Legal History

Law and Custom in Early Britain (1-10)

People Types

Celtic

1. General
a. Arrived in early 5^th Century B.C.
b. “Britons”
I. Some mixture of bronze age people and Celtics
c. Were Indo-European speaking tribal peoples from Germany
d. Militaristic culture spread over much of Europe- went from British Isles to Asia Minor
2. Social Structure
a. Based on king like chiefs
b. Priests known as druids

Romans

1. General
a. Briton was conquered in 43 A.D. by Romans
I. Romans remained ruling for 400 years
b. Roman law was enforced in civilized societies until Roman Legions abandoned Britain in 4th Century to defend Rome
2. London
a. Londoninum- built at the highest point at the river Thames navigable by large commercial ships and war ships
b. Could take boat into middle of island

German Invaders

1. With collapse of Roman Hegemony, Britons became subject to waves of German invaders
a. Anglo-Saxons
2. These raiders pushed the Celts to the edges of the island- Wales, Scottish highlands, etc.
3. Anglo- Saxons began to dominate England

Anglo Saxons

1. Bought Germanic codes and social organization
2. To mitigate self-help in dispute resolution, they used “blood money” as a substitute for feuding.
a. In English law arms and legs have a certain value attached- lawsuits are less

Vikings

1. General
a. 8th century- Danes and Norwegians
b. In 865 Vikings invaded and settled.
c. In 1016 a Dane Kenuit was ruler of the isle.
2. Anglo-Saxon Kings were mixed in with Viking Kings

Anglo-Saxon Period

Religion

1. Anglo-Saxons converted to Christianity and in 597 St. Augustan arrived on the island.
2. The church’s impact on dispute resolution

a. Taught it was honorable to be forgiving and accept payment for injuries

King Alfred

1. Alfred helped author the first step of laws with the help of his clergy
a. Alfred is referred to as the first king of England
2. Alfred’s code of laws
a. Set a constitutional precedent for legislation by the English kings
b. It was very general and eventually fell out of practice.
c. While this was a written code, most of English law was handled by unwritten decisions.

4 types of decision making groups

Folk Assembly

(borough courts)

a. Open air meetings of the people to discuss local affairs
b. Similar to assemblies
c. In these assemblies there was no distinction between dispute resolution, administrative, legislative decisions
I. Any decisions from these things were based on local custom- unwritten local custom
II. These customs varied from community to community

Main assembly-Shire Assembly

a. This was the chief assembly for the Shire- would maybe meet once a years
b. Shires were divided into hundreds who were then subdivided into tithings
I. Each of these subdivisions had its own assembly
c. Shireve was the executive power of the shire
I. Shortened to Sheriff now

Seigniorial Authority

(manor)

a. Hall is where the local noble lives
b. Lordship of the manor has little to do with inheritance of money, but it indicates that you own the hall and have authority over the manner.
c. Manor
I. Self sustaining economic and social organization
II. Lord of manor had jurisdiction over the manor
1. Legislative, administrative, dispute resolution
III. More of a lower level administrator

Church Courts

Dispute Resolution in Anglo Saxon Time

1. Could go to sheriff and sheriff would produce that person at the next shire meeting in which you would plea
a. You would also bring friends with you who would be your “suit” you would argue your plea then your “suit” would back you up and argue that what you said was true and that your oath could be believed
b. Oaths were taken very seriously and it was thought if you were lying then you would go to hell
2. Defendant would also swear an oath
a. He would have back up called compugaters (similar to Plaintiff’s Suit)
b. If defendant stood up, swore a holy oath and was backed up by 12 compugaters, then he would win without cross-examination
3. In more serious cases
a. Defendant might be put through an ordeal
I. Page 5
b. When oath was not enough, they would go to the church- get blessed- and ask God to be with them- once God was there, there were several forms of ordeal
I. Ordeal by fire
1. Hot iron burned the guys hand, it was then wrapped up
2. If the wound was fesered in a few days, he was guilty
II. Ordeal by water
1. Lowered into water, if they sank- then the water received the person with God’s blessing and would be retrieved out.
4. Reasons ordeals worked
a. This type of dispute resolution was quick- God was there to decide
b. Clear yes or no answer
c. No expense or time to find out truth
5. Ordeals demonstrate the fact that it was more important for the community to have the dispute solved and moved on than to actually find out the truth
a. Plus God was there to confirm the decision

Normans

General

1. In 1066 the Normans conquered the island of Britain

William After He Took Over

1. Thought the Anglo-Saxon nobility were traitors because they opposed him- they were then forced to sacrifice their land to the king
2. He took the position that he owned all the real estate in England
a. This resulted in current property law
3. Installed a French-style feudal system
a. He imported this to England-
I. Gave to his most important nobles the use of large tracts of land in exchange for military service and other rents
b. Each of nobles had vast tracts of land- but held it of King
I. Could then create lower nobles that controlled different portions of land.
1. Each layer of nobility owed military service to the nobility above them

Government

1. Allowed the Anglo-Saxons to keep their manors, and assemblies
a. Did not alter legal system
2. Did have 2 goals
a. To have a peaceful and progressive country
I. This created the idea of the King’s Highway- where the king wanted to prevent raiders from attacking people along the roads, etc.
II. To accomplish this goal they needed
1. Military
2. Legal system that was common to everyone
a. This brought about the idea of the Common law
b. To administer the feudal system

Wales/Scotland

1. Normans had trouble conquering Wales and Scotland after the Norman Conquest
2. The borders of Wales and Scotland were called “marches”
a. Williams knights willing to accept land in marches were giving special privileges (Lords of Marches)
I. This was done because they had to absorb the damage of the raids of the Welts and Scots.
b. These marches areas were miniature kingdoms

Origins of the Common law (12-34)

See more about Common law here.

General

I. The Normans began a gradual centralization of the court systems.

Types of Early Courts

Curia Regis (Kings Court)

1. Carried out dispute resolution
a. Eventually deputized out to where you’d take it to the chancellor
b. Could still go to the old folk assemblies and plead your case

Exchequer

1. Controlled King’s Revenues
a. Called this because accounting was performed on a cloth that looked like a checker board

Chancery

1. General governmental function run by chancellor
2. Began as an institution as the Chaplin to the king because the chaplain was the only one who could read and write.
3. Effects of Norman Inclination to Centralized Administration
a. King had 2 judicial objectives
I. Protect his revenues and feudal system
II. Collection of taxes, etc.
III. To have King’s Peace on roads and markets

Early Uniform Policies

I. One of early policies was to undercut power of sheriffs (shrivee)
1. Sheriffs were representatives of central government when Normans arrived
2. Were very powerful- Normans did not like so they de-emphasized the role of the sheriff
3. Were not disposed of- just had their power undercut

People’s opinion’s of Crown Courts

I. Liked it for several reasons
1. Were more Uniform
a. Much better able to form enforceable expectations when Crown Courts were used
b. By 1300’s there started to be written records in Crown Courts
c. The trials were performed in French and written in Latin
d. Was more predictable and final thanks to the written record.
I. Local courts were basically a swearing contest in front of the local moot
II. Even if you had a judgment you may not be able to get a judgment because the losing party may re-open the matter in the crown court
2. Royal justice steadily gained ground

Crown’s Opinion of the Courts

I. Liked the court system too
1. Source of Control
2. Revenues
a. The courts received fees, etc.
I. To start a lawsuit you’d go to the lord chancellor and buy a writ
II. The lord would order someone to get the defendant and make sure he showed up for the trial
b. Judges and clerks lived off the fees and some of the revenue went to the crown
II. The dispute resolution part of government was delegated to the lord chancellor pretty early on- so the lord chancellor would be whom you would plead- he had other people below him that would also make rulings.

Decline of Travelling Courts

General

Most people did not travel around very often during these times

2. Plus the king was constantly on the move during these times- would travel to inspect, eat, etc.
3. As a result of this they started experimenting with bringing the crown’s justice to the people
a. They would hold local courts as manifestation of King’s Court
b. Because the King’s Court applied the same law across the land it became known as common law

Attempts to bring Courts to the People

Justiciars

a. A deputy king empowered to act in royal affairs
b. Were assigned in local venues to be viceroys
c. Would do administrative, legislative, and dispute resolution
I. Were not judges- did all of the king’s work locally
II. These guys displaced the sheriffs in many ways
d. Eventually was disbanded because it was too much power- started behaving the same way the sheriffs did.
e. These were local people in the community

Travelling Representatives

a. These were people sent out by the crown to travel from place to place.
b. Not a court system- would conduct business of the king including dispute resolution
c. Did not build power bases because they were not from the area.

Henry II in 1166

1. Made some major changes to the court system

2. Created

Justicia Erantes

a. organized around 6 judicial circuits

b. Became known as justices in eyre

c. This system persisted for several centuries
d. problems with this
I. the justices misbehaved
II. constituted a financial burden when they came to town
III. were travelling so it was hard to find them

3. Also Created the King’s Bench

a. This was a stationary royal court functioning independently of the king’s presence.
b. Were not to depart from this location- would hear all the difficult cases except for especially difficult ones in which case the king himself would hear the case
I. Heard cases of particular royal interest.
II. Were at Westminster

4.Commissions

a. Various commissions were granted to people for a limited period of time conferring a limited jurisdiction

Similar court like systems

 

Nisi Prius

I. Kings justices sent out to local counties to hold local courts
II. Would hold local court and write down the judgment and sent it back to England where it would be recorded
1. Kings bench starting to become appeals court

Justices of Azzize

I. Started to become a distinct departments of governmental activity
II. Performed the legislation function of government
1. Azzize was legislation passed by the king
III. These justices of assize would convene the local population and read the laws to the people
IV. Magna Carta said these assizes should be people who were not part of the royal court
1. Also provided that the justices of assize should visit each county twice each year
2. This would make sure that the people were updated on new legislation

c. Eventually these 2 courts merged in 1200s

I. Became known as assizes once they merged
II. By 1340 there were 4 organized circuits on which the assizes rode
1. The assize commissioners were required to one of the following
a. be justices of king’s bench,
b. or court of common pleas,
c. or serjeants at law
III. This assize system lasted until 1971

The communal systems were adopted by the crown courts

1. Assize sat on day and place of county court
2. Courts depended on sheriffs
3. Pleadings were done the same way
4. For matters of minor jurisdiction the local moots were still around and could still perform dispute resolution.
a. Similar to the parallel system of courts in the U.S.
I. If you could not get a writ from lord chancellor then you
1. Could go to the shire court
a. The causes of action were narrowly drawn and if your case did not fit into this then you could not buy a writ from the chancellor
2. Could also ask the Lord Chancellor to do equity in the court’s of chancery
a. This was a 3^rd judicial system- meant to be more flexible and would do that which should be done

Sheriffs were undercut in power

1. Could not serve for life- 1 yr terms
2. Not inheritable

Assemblies

1. Faded in importance due to Norman emphasis on centralized administration
2. Eventually the shires started sending representatives to London to talk to the king- instead of the king travelling to the shires and talking there.

Early Law in England

Early Legislation

In the English story, the age of the capitularies (for such we well might call it) begins with us just when it has come to its end upon the Continent. We have had some written laws from the newly converted Kent and Wessex of the seventh century. We have heard that in the day of Mercia’s greatness Offa (ob. 796), influenced perhaps by the example of Charles the Great, had published laws. These we have lost, but we have no reason to fear that we have lost much else. Even Egbert did not legislate. The silence was broken by Alfred (871–901), and then, for a century and a half we have laws from almost every king: from Edward, Æthelstan, Edmund, Edgar, Æthelred and Cnut. The age of the capitularies begins with Alfred, and in some sort it never ends, for William the Conqueror and Henry I. take up the tale. Whether in the days of the Confessor, whom a perverse, though explicable, tradition honoured as a preeminent law-giver, we were not on the verge of an age without legislation, an age which would but too faithfully reproduce some bad features of the Frankish decadence, is a question that is not easily answered. Howbeit, Cnut had published in England a body of laws which, if regard be had to its date, must be called a handsome code. If he is not the greatest legislator of the eleventh century, we must go as far as Barcelona to find his peer. He had been to Rome; he had seen an emperor crowned by a pope; but it was not outside England that he learnt to legislate. He followed a fashion set by Alfred. We might easily exaggerate both the amount of new matter that was contained in these English capitularies and the amount of information that they give us; but [24] the mere fact that Alfred sets, and that his successors (and among them the conquering Dane) maintain, a fashion of legislating is of great importance. The Norman subdues, or, as he says, inherits a kingdom in which a king is expected to publish laws.

England and the continent

Were we to discuss the causes of this early divergence of English from continental history we might wander far. In the first place, we should have to remember the small size, the plain surface, the definite boundary of our country. This thought indeed must often recur to us in the course of our work: England is small: it can be governed by uniform law: it seems to invite general legislation. Also we should notice that the kingship of England, when once it exists, preserves its unity: it is not partitioned among brothers and cousins. Moreover we might find ourselves saying that the Northmen were so victorious in their assaults on our island that they did less harm here than elsewhere. In the end it was better that they should conquer a tract, settle in villages and call the lands by their own names, than that the state should go to pieces in the act of repelling their inroads. Then, again, it would not escape us that a close and confused union between church and state prevented the development of a body of distinctively ecclesiastical law which would stand in contrast with, if not in opposition to, the law of the land. Such power had the bishops in all public affairs, that they had little to gain from decretals forged or genuine; indeed Æthelred’s laws are apt to become mere sermons preached to a disobedient folk. However we are here but registering the fact that the age of capitularies, which was begun by Alfred, does not end. The English king, be he weak like Æthelred or strong like Cnut, is expected to publish laws.

Source: Sir Frederick Pollock, The History of English Law before the Time of Edward I (1895)

Author: admin

Author: admin

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