Theme: Constitutional Order

ENGLISH COMMON LAW

Common law developed after the Norman Conquest of England. In 1066 England was peopled with Angles, Saxons, Vikings, Danes, Celts, Jutes, and other groups who were suddenly ruled by French-speaking Normans. Most law at the time was customary law that had been handed down orally from generation to generation.

In addition there were the legal code of Alfred the Great, which was biblical in nature, and the Danelaw of the Vikings and Danes. Most of the courts were communal courts (folk-moot), the hundred and shire courts, and baronial, or manorial, courts administering justice in the interest of the local nobility.

Immediately after the Norman Conquest the king would hear cases coram rege (before the king) that involved royal interests. However, the king with the royal court tended to be on the move in England or away in France. Consequently the legal work was soon delegated to an appointed tribunal, the Curia Regis. From it came the three royal common law courts that were used to unify the kingdom.

The first of the royal common law courts was the Exchequer. Originally concerned with the collection of taxes and the administration of royal finances, by 1250 it had become a court exercising full judicial powers. The second royal common law court to develop was the Court of Common Pleas (or Common Bench), which was probably established during the reign of Henry II (1154–1189).

This court heard cases that did not involve the king’s rights. It was firmly established at Westminster after King John was forced to sign the Magna Carta in 1215. The third royal common law court to evolve from the Curia Regis was the King’s Bench. Eventually this court heard cases involving the king’s interests, criminal matters, and cases affecting the high nobility. It also developed the practice of issuing writs of error for review of cases decided in Common Pleas.

One factor promoting the development of the common law courts was their ability to settle land disputes. All of the land in England belonged to the king by right of conquest. He then awarded it to his vassals to hold and utilize in exchange for loyalty and for services. Because economic production was almost exclusively agricultural, title to the use of land was extremely valuable.

Disputes over who was entitled to possess land created innumerable cases. As the justices in Eyre traveled their assigned circuits to hold court, they would decide cases using the Bible, canon law, and most especially reasoning applied to the customary law of that place. When the judges returned to London they would go to their places of permanent residence in taverns or cloisters.

These residences of the judges, who were often monks or bachelors, eventually became the Inns of Court, where cases were heard and experts were trained in law. In the course of over 200 years the judges “discovered” the law common to all the people of England. The belief was that underlying the thicket of unwritten customary law was a common foundation that could be discovered by reason.

In effect the judges were developing legal principles or laws as they made judicial rulings in particular cases. Among the principles of the common law are stare decisis (let the decision stand). Stare decisis means that a judge in deciding a case should look to similar cases from the past for guidance. The use of similar cases is itself a legal principle, namely, that like cases should be tried alike.

However in the absence of a precedent setting rule the judge would in effect “legislate” and create a new rule. This meant that the common law was case law or judge-made law created by legal reasoning about legal problems. It was well established centuries before the rise of Parliament.

The developing common law had the virtue of stability; however, it lacked flexibility. To bring a case into a common law court was often too costly for common people. The common law courts also moved slowly; that could mean that justice delayed was justice denied. To lodge a complaint in a common law court an appropriate writ had to be obtained.

If the wrong kind of writ were used, of which there were eventually over 100 kinds, the case would be dismissed. In addition some of the rules of the common law were injurious to justice. For example before bringing a suit for an injury to a person or to property in a common law court real injury had to be sustained. The common law lacked a mechanism for preventing irreparable harms from happening.

Since the king was believed to be the fountainhead of justice in England—that is, the person who ruled by divine right and though whom the justice of heaven flowed to the people—equity courts were established to restore fairness or equity to the legal system. People would appeal to the king for justice. In response the kings ordered the court chancellor to issue decrees of equity. Chancery courts developed to hear cases of equity and to correct the common law.

ANGLO SAXON LAW (GERMANIC LAW)

Anglo-Saxon law, the body of legal principles that prevailed in England from the 6th century until the Norman Conquest (1066). In conjunction with Scandinavian law and the so-called barbarian laws (leges barbarorum) of continental Europe, it made up the body of law called Germanic law. Anglo-Saxon law was written in the vernacular and was relatively free of the Roman influence found in continental laws that were written in Latin. Roman influence on Anglo-Saxon law was indirect and exerted primarily through the church. There was a definite Scandinavian influence upon Anglo-Saxon law as a result of the Viking invasions of the 8th and 9th centuries. Only with the Norman Conquest did Roman law, as embodied in Frankish law, make its influence felt on the laws of England.

Anglo-Saxon law was made up of three components: the laws and collections promulgated by the king, authoritative statements of custom such as those found in the Norman-instituted Domesday Book, and private compilations of legal rules and enactments. The primary emphasis was on criminal law rather than on private law, although certain material dealt with problems of public administration, public order, and ecclesiastical matters.

Before the 10th century, the codes often merely presented lists of compositions—money paid to an injured party or his family—but by the 10th century a new penal system had evolved based on outlawry (declaring a criminal an outlaw), confiscation, and corporal and capital punishment. By this time there also had been an increased development of the law relating to administrative and police functions.

The Anglo-Saxon legal system rested on the fundamental opposition between folkright and privilege. Folkright is the aggregate of rules, whether formulated or not, that can be appealed to as an expression of the juridical consciousness of the people at large or of the communities of which it is composed. It is tribal in origin and is differentiated on highly localized bases. Thus, there was a folkright of East and West Saxons, Mercians, Northumbrians, Danes, and Welshmen, and these main folkright divisions persisted even after the tribal kingdoms disappeared in the 8th and 9th centuries. The responsibility for the formulation and application of the folkright rested, in the 10th and 11th centuries, with the local shire moots (assemblies); the national council of the realm, or witan, only occasionally used folkright ideas. The older laws of real property, succession, contracts, and compositions were mainly regulated by folkright; the law had to be declared and applied by the people themselves in their communities.

FOLKRIGHT

Folkright could, however, be broken or modified by special enactment or grant, and the foundation of such privileges was royal power, especially once England became a single kingdom in the 10th century. In this manner a privileged land tenure was created; the rules pertaining to the succession of kinsmen were replaced by concessions of testamentary power and confirmations of grants and wills, and special privileges as to levying fines were conferred. In time, the rights originating in the royal grants of privilege came to outweigh folkright in many respects and were the starting point for the feudal system.

Before the 10th century an individual’s actions were considered not as exertions of his own will but as acts of his kinship group. Personal protection and revenge, oaths, marriage, wardship, and succession were all regulated by the law of kinship. What began as a natural alliance later became a means of enforcing responsibility and keeping lawless individuals in order. As the associations proved insufficient, other collective bodies, such as guilds and townships, assumed these functions. In the period before the Norman Conquest, much regulation was formalized by the king’s legislation in order to protect the individual. In the area of property, for example, witnesses were required at cattle sales, not to validate the sale but as protection against later claims on the cattle. Some ordinances required the presence of witnesses for all sales outside the town gate, and others simply prohibited sales except in town, again for the buyer’s protection.

The preservation of peace was an important feature of Anglo-Saxon law. Peace was thought of as the rule of an authority within a specific region. Because the ultimate authority was the king, there was a gradual evolution of stringent rules and regulations against violating the king’s peace.