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ENGLISH LAW (History)
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See also:ENGLISH See also:LAW (See also:History) . In See also:English See also:jurisprudence " legal memory " is said to extend as far as, but no further than the See also:coronation of See also:Richard I . (See also:Sept . 3, 1189) . This is a technical See also:doctrine concerning prescriptive rights, but is capable of expressing an important truth . For the last seven centuries, little more or less, the English See also:law, which is now overshadowing a large See also:share of the See also:earth, has had not only an extremely continuous, but a matchlessly well-attested See also:history, and, moreover, has been the subject See also:matter of rational exposition . Already in 1194 the daily doings of a tribunal which was controlling and moulding the whole See also:system were being punctually recorded in letters yet legible, and from that See also:time onwards it is rather the enormous bulk than any dearth of available materials that prevents us from tracing the transformation of every old doctrine and the emergence and expansion of every new See also:idea . If we are content to look no further than the See also:text-books—the books written by lawyers for lawyers—we may read our way backwards to See also:Blackstone (d . 178o), See also:Hale (d . 1676), See also:Coke (d . 1634), See also:Fitzherbert (d . 1538), See also:Littleton (d .
1481), See also:Bracton (d
.
1268), See also:Glanvill (d
.
1190), until we are in the reign of See also:
Pursuing it through the See also:code of Canute (d
.
1035) and the ordinances of See also:Alfred (c. goo) and his successors, we see See also:Ine See also:publishing See also:laws in the newly converted Wessex (c
.
69o), and, almost a See also:century earlier, £Ethelberht doing the same in the newly converted See also:Kent (c
.
600)
.
This he did, says Beda, in accordance with See also:Roman precedents
.
Perhaps from the Roman missionaries he had heard tidings of what the Roman See also:emperor had lately been doing far off in New See also:Rome
.
We may at any See also:rate See also:notice with See also:interest that in See also:order of time Justinian's law-books fall between the Lex Salica and the earliest Kentish dooms; also that the great See also:pope who sent See also:Augustine to England is one of the very few men who between Justinian's See also:day and the 11th century lived in the Occident and yet can be proved to have known the
See also:Digest
.
In the Occident the time for the Germanic "folk-laws" (Leges Barbarorum) had come, and a See also:Canon law, ambitious of See also:independence, was being constructed, when in the Orient the See also:lord of See also:
Then, though the 8th and 9th centuries are unproductive, we have from Alfred (c
.
900) and his successors a See also:series of edicts which strongly resemble the Frankish capitularies —so strongly that we should see a clear See also:case of See also:imitation, were it not that in See also:Frankland the See also:age of legislation had come to its disastrous end See also:long before Alfred was See also: Even the strong Scandinavian See also:strain seems to have rapidly blended with the Anglian . It amplified the language and the law, but did not permanently divide the See also:country . If, for example, we can to-day distinguish between law and right, we are debtors to the Danes; but very soon law is not distinctive of eastern or right of western England . In the first See also:half of the 12th century a would-be expounder of the law of England had still to say that the country was divided between the Wessex law, the Mercian law, and the Danes' law, but he had also to point out that the law of the king's own See also:court stood apart from and above all partial systems . The See also:local customs were those of shires and hundreds, and shaded off into each other . We may speak of more Danish and less Danish counties; it was a matter of degree; for See also:rivers were narrow and hills were See also:low . England was meant by nature to be the land of one law . Then as to Roman law . In England and elsewhere Germanic law See also:developed in an See also:atmosphere that was charged with traditions of the old See also:world, and many of these traditions had become implicit in the See also:Christian religion . It might be argued that all that we call progress is due to the See also:influence exercised by Roman See also:civilization; that, were it not for this, Germanic law would never have been set in See also:writing; and that theoretically unchangeable See also:custom would never have been supplemented or supersededby See also:express legislation . All this and much more of the same sort might be said; but the survival in Britain, or the reintroduction into England, of anything that we should dare to call Roman jurisprudence would be a different matter . Eyes, carefully trained, have minutely scrutinized the Anglo-Saxon legal texts without finding the least trace of a Roman See also:rule outside the ecclesiastical See also:sphere . Even within that sphere See also:modern See also:research is showing that the church-See also:property-law of the See also:middle ages, the law of the ecclesiastical " See also:benefice," is permeated by Germanic ideas . This is true of Gaul and Italy, and yet truer of an England in which See also:Christianity was for a while extinguished . Moreover, the laws that were written in England were, from the first, written in the English See also:tongue; and this gives them a unique value in the eyes of students of Germanic folk-law, for even the very See also:ancient and barbarous Lex Salica is a Latin document, though many old Frankish words are enshrined in it . Also we notice—and this is of See also:grave importance—that in England there are no vestiges of any " Romani " who are being suffered to live under their own law by their Teutonic rulers . On the See also:Continent we may see Gundobad, the Burgundian, publishing one law-See also:book for the Burgundians and another for the Romani who own his sway . A book of laws, excerpted chiefly from the Theodosian code, was issued by See also:Alaric the Visigoth for his Roman subjects before the days of Justinian, and this book (the so-called Breviarium Alarici or Lex See also:Romana Visigothorum) became for a long while the See also:chief representative of Roman law in Gaul . The Frankish king in his expansive See also:realm ruled over many men whose law was to be found not in the Lex Salica or Lex Ribuaria, but in what was called the Lex Romana . "A system of See also:personal law" prevailed: the homo See also:Romanus handed on his Roman law to his See also:children, while Frankish or Lombardic, Swabian or Saxon law would run in the blood of the See also:home barbarus . Of all this we hear nothing in England . Then on the mainland of Europe Roman and See also:barbarian law could not remain in juxtaposition without affecting each other . On the one See also:hand we see distinctively Roman rules making their way into the law of the victorious tribes, and on the other hand we see a decay and debasement of jurisprudence which ends in the formation of what modern historians have called a Roman " vulgar-law " (Vulgarrecht) . For a See also:short age which centres See also:round the See also:year Boo it seemed possible that Frankish kings, who were becoming Roman emperors, would be able to rule by their capitularies nearly the whole of the Christian Occident .
The See also:dream vanished before fratricidal See also:wars, See also:heathen invaders, centrifugal See also:feudalism, and a centripetal church which found its law in the newly concocted forgeries of the Pseudo-Isidore (c
.
850)
.
The "personal laws" began to transmute themselves into local customs, and the Roman vulgar-law began to look like the local custom of those districts where the Romani were the preponderating See also:element in the See also:population
.
Meanwhile, the Norse pirates subdued a large See also:tract of what was to be See also:northern See also:France—a land where Romani were few
.
Their restless and boundless vigour these See also:Normans retained; but they showed a wonderful See also:power of appropriating whatever of See also:alien civilization came in their way
.
In their language, religion and law, they had become French many years before they subdued England
.
It is a plausible See also:opinion that among them there lived some See also:sound traditions of the Frankish See also:monarchy's best days, and that Norman See also:dukes, rather than See also:German emperors or kings, of the French, are the truest spiritual heirs of See also:
Also it must be allowed that when 'English law has taken shape in the 13th century it is very like one of the routumes of northern France
.
Even when linguistic difficulties have been surmounted, the Saxon See also:Mirror
See also:man age
.
Eadwardi which was thus restored
.
The result of their labours is an intricate See also:group of legal tracts which has been explored of See also:late years by Dr See also:Liebermann
.
The best of these has long been known as the Leges Henrici Primi, and aspires to be a comprehensive law-book
.
Its author, though he had some See also:foreign See also:sources at his command, such as the Lex Ribuaria and an See also:epitome of the See also:Breviary of Alaric, took the main part of his matter from the code of Canute and the older English dooms
.
Neither the Conqueror nor either of his sons had issued many ordinances: the' invading Normans had little, if any, written law to bring with them, and had invaded a country where kings had been lawgivers
.
Moreover, there was much in the English system that the Conqueror was keenly interested in retaining—especially an elaborate method of taxing the land and its holders
.
The greatest product of Norman See also:government, the grandest feat of government that the world had seen for a long time past, the compilation of Domesday Book, was a conservative effort, an See also:attempt to See also:fix upon every landholder, French or English, the amount of geld that was due from his predecessor in See also:title
.
Himself the rebellious See also:vassal of the French king, the duke of the Normans, who had become king of the English, knew much of disruptive feudalism, and had no mind to see England that other France which it had threatened to become in the days of his pious but incompetent See also:cousin
.
The sheriffs, though called See also:vice-comites, were to be the king's See also:officers; the See also:shire-moots might be called See also:county courts, but were not to be the courts of See also:counts
.
Much that was sound and royal in English public law was to be preserved if See also: The gulf that divides the so-called Leges Henrici (c . 1115) from the text-book ascribed to Ranulf Glanvill (c . 1188) seems Royal at first sight very wide . The one represents a not See also:Justice. easily imaginable See also:chaos and clash of old rules and new; it represents also a See also:stage in the development of feudalism which in other countries is represented chiefly by a significant silence . The other is an orderly, rational book, which through all the subsequent centuries will be readily under-stood by English lawyers . Making no attempt to tell us what goes on in the local courts, its author, who may be Henry II.'s chief See also:justiciar, Ranulf Glanvill, or may be Glanvill's See also:nephew, See also:Hubert See also:Walter, fixes our attention on a novel element which is beginning to subdue all else to its powerful operation . He speaks to us of the justice that is done by the king's own court . Henry II. had opened the doors of his French-speaking court to the See also:mass of his subjects . See also:Judges chosen for their ability were to sit there, See also:term after term; judges were to travel in circuits through the land, and in many cases the procedure by way of " an See also:inquest of the country," which the Norman kings had used for the ascertainment of their fiscal rights, was to be at the disposal of See also:ordinary litigants . All this had been done in a piecemeal, experimental See also:fashion by ordinances that were known as " assizes." There had not been, and was not to be, any enunciation of a See also:general principle inviting all who were wronged to bring in their own words their complaints to the king's See also:audience . The general prevalence of feudal justice, and of the world-old methods of supernatural See also:probation (ordeals, See also:battle, oaths sworn with See also:oath-helpers), was to be theoretically respected; but in exceptional cases, which would soon begin to devour the rule, a royal remedy was to be open to any one who could See also:frame his case within the See also:compass of some carefully-worded and prescript See also:formula . With allusion to a remote stage in the historyof Roman law, a stage of which Henry's advisers can have known little or nothing, we may say that a formulary system " is established which will preside over English law until modern times .
Certain actions, each with a name of its own, are open to litigants
.
Each has its own formula set forth in its See also:original (or, as we might say, originating) See also:writ; each has its own procedure and its appropriate mode of trial
.
The litigant chooses his writ, his See also:action, and must stand or fall by his choice
.
Thus a book about royal justice tends to become, and Glanvill's book already is, a commentary on original writs
.
The precipitation of English law in so coherent a See also:form as that which it has assumed in Glanvill's book is not to be explained without reference to the revival of Roman jurisprudence in Italy
.
Out of a school of Lombard lawyers at See also:Pavia had come See also:Lanfranc the Conqueror's adviser, and the Lombardists had already been studying Justinian's Institutes
.
Then at length the Digest came by its rights
.
About the year 1100 See also:Irnerius was teaching at See also:Bologna, and from all parts of the See also:West men were eagerly flocking to hear the new See also:gospel of civilization
.
About the year 1149 See also:Vacarius was teaching Roman law in England
.
The See also:rest of a long See also:life he spent here, and faculties of Roman and Canon law took shape in the nascent university of See also:Oxford
.
Whatever might be the fate of Roman law in England, there could be no doubt that the Canon law, which was crystallizing in the Decretum Gratiani (c
.
1139) and in the See also:decretals of See also:
The great See also:quarrel between Henry II. and See also: But during Henry III.'s long reign the See also:swift development of English law was due chiefly to new " original writs " and new " forms of action " devised by the See also:chancery and sanctioned by the court . Bracton knew many writs that were unknown to Glanvill, and men were already perceiving that limits must be set to the inventive power of the chancery unless the king was to be an uncontrollable law-maker . Thus the common law was losing the power of rapid growth when Bracton summed the attained results in a book, the success of which is attested by a See also:crowd of See also:manuscript copies . Bracton had introduced just enough of Roman law and Bolognese method to See also:save the law of England from the fate that awaited German law in Germany . His book was printed in 1,569, and Coke owed much to Bracton . The comparison that is suggested when Edward I. is called the English Justinian cannot be-pressed very far . Nevertheless, as is well known, it is in his reign (1272–1307) that English institutions finally take the forms that they are to keep through coming centuries . We already see the See also:parliament of the three estates, the convocations of the See also:clergy, the king's See also:council, the chancery or secretarial See also:department, the exchequer or See also:financial department, the king's See also:bench, the common bench, the commissioners of See also:assize and See also:gaol delivery, the small group of professionally learned judges, and a small group of professionally learned lawyers, whose skill is at the service of those who will employ them . Moreover, the statutes that were passed in the first eighteen years of the reign, though their bulk seems slight to us nowadays, See also:bore so fundamental a See also:character that in subsequent ages they appeared as the substructure of huge masses of superincumbent law . Coke commented upon them See also:sentence by sentence, and even now the merest smatterer in English law must profess some knowledge of Quia emptores and De donis conditionalibus . If some See also:American states have, while others have not, accepted these statutes, that is a difference which is not unimportant to citizens of the See also:United States in the loth century . Then from the early years of Edward's reign come the first "law reports " that have descended to us: the See also:oldest of them have not yet been printed; the oldest that has been printed belongs to 1292 . These are the precursors of the long series of Year Books (Edw . II.-See also:Hen . VIII.) which runs through the See also:residue of the middle ages . Lawyers, we perceive, are already making and preserving notes of the discussions that take See also:place in court; French notes that will be more useful to them than the formal Latin records inscribed upon the plea rolls . From these reports we learn that there are already, as we should say, a few " leading counsel," some of whom will be retained in almost every important cause . Papal decretals had been endeavouring to withdraw the clergy from See also:secular employment . The clerical element had been strong among the judges of Henry III.'s reign: Bracton was an See also:archdeacon, Pateshull a See also:dean, See also:Raleigh died a bishop . Their places begin to be filled by men who are not in orders, but who have pleaded the king's causes for him —his serjeants or servants at law—and beside them there are See also:young men who are " apprentices at law," and are learning to plead . Also we begin to see men who, as " attorneys at law," are making it their business to appear on behalf of litigants . The history of the legal profession and its See also:monopoly of legal aid is intricate, and at some points still obscure; but the influence of the canonical system is evident: the English See also:attorney corresponds to the canonical See also:proctor, and the English See also:barrister to the canonical See also:advocate . The main outlines were being See also:drawn in Edward I.'s day; the legal profession became organic, and professional opinion became one of the main forces that moulded the law . The study of English law See also:fell apart from all other studies, and the impulse that had flowed from Italian jurisprudence was ebbing .
We have two comprehensive text-books from Edward's reign: the one known to us as See also:Fleta, the other as See also:Britton; both of them, however, See also:quarry their materials from Bracton's treatise
.
Also we have two little books on procedure which are attributed to Chief-Justice Hengham, and a few other small tracts of an intensely See also:practical See also:kind
.
Under the See also:cover of fables about King
Alfred, the author of the Mirror of Justices made a See also:bitter attack upon King Edward's judges, some of whom had fallen into deep disgrace
.
English legal history has hardly yet been purged of the See also:leaven of falsehood that was introduced by this fantastic and unscrupulous pamphleteer
.
His enigmatical book ends that literate age which begins with Glanvill's treatise and the treasurer's dialogue
.
Between-Edward I.'s day and Edward IV.'s hardly anything that deserves the name of book was written by an English lawyer
.
During that time the body of See also:statute law was growing, but not very rapidly
.
Acts of parliament intervened at a sufficient number of important points to generate and maintain a persuasion that no limit, or no ascertainable limit, '14th and can be set to the legislative power of king and parlia- centuries. ment
.
Very few are the signs that the judges ever permitted the validity of a statute to be drawn into debate
.
Thus the way was being prepared for the definite assertion of See also:parliamentary " omnicompetence " which we obtain from the Elizabethan statesman See also:Sir Thomas See also: |