English Legal History and its Materials

English Law Came From Somewhere, And It Wasn't God

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-- By JustinMaffett - 28 Nov 2017

"English" law in fact is not English at its origins. In fact, what Maitland called the “Englishery of English law” lies precisely in its diversity of origin. This diverse origin of English law can be traced to Anglo-Saxon, Scandinavian, Frankish, and, in come cases, even Roman law. It would be foolish to try to evaluate England’s legal history without first engaging and grappling with its diverse origin, for it is precisely because of England’s history of being conquered and influenced by foreign powers that there was a movement in the twelfth century to form a distinctively British system, devoid of foreign legal influence. To understand this development, it is necessary to first explore that diverse history.

The story beings with the Anglo-Saxons who ruled over England for 500 years, from 600 to 1100 AD. Starting with King Aethelberht I of Kent in about 600 AD, the Anglo-Saxons were the first to introduce written laws in England, a practice which itself is of Roman origin. Before, there was no written law such that England was governed by unwritten custom. Similarly procedural, the Anglo-Saxons also made use of Latin phrases with regards to charters and landbooks. The Anglo-Saxons’ use of seals and written instruments was one of the more significant innovations of the period. But the Roman influences extended into substantive areas of the law too. For example, as Maitland points out, Anglo-Saxon law reflected Roman law as it concerned crimes of treason, homicide, wounding and assault (Maitland 51).

However, over the course of their 500-year rule, the Anglo-Saxons developed a system of courts of public justice where commoners could plead their case and seek relief. There was the county court, which was held twice a year, and the hundred court, which was held every four weeks. (Maitland 42). For his part, the king had royal jurisdiction over civil cases and parallel jurisdiction over criminal (Baker 9). Additionally, there was a practice called the “court baron” where lords would hold court in their homes to create the opportunity for their tenants to settle their own local disputes. Though the Anglo-Saxon period surly left an indelible mark on English law, it was not the only foreign power to leave its mark during this time.

The second significant foreign influence came with the Danish invasion of the ninth century, which exposed England to a Scandinavian culture, specifically Danelaw. In fact, the word “law” itself is Norse (Baker 3). Similarly, the structure of England's own aristocracy was infused with Danish custom, as illustrated by the word for noble born men, earl, coming from the Danish world eorl (Maitland 32). Moreover, the Danish King Cnut ruled over England, Norway, and Denmark from 1016 to 1035. Not only were his laws popular at the time, but they remained well-regarded in the centuries to come, long after his death (Plucknett 11). But comparatively speaking, it was the Norman Conquest that marked that major inflection point in English legal history.

Finally, the Norman Conquest of 1066 ushered in the rule of William the Conqueror and with it changes to England’s legal landscape. When William arrived, he promised the English that he would leave their old laws in place (Baker 12). But as Plunkett notes, the Norman Conquest brought about the induction of “precise and orderly methods into the government and law of England” (Plunkett 11). For example, William reorganized the treasure as the Exchequer, an institution that survives to this day.

The Normans also worked to strengthen the criminal justice system that the Anglo-Saxons had created. One of the major innovations in this space was the use of the writ, which became the means through which the Crown was able to extend the King’s power. At the time, the power dynamic between the king and the county and hundred courts started to shift, as the King’s justice –the practice where the king would hold court for the aggrieved—became more organized. Usually the King would have to sit in person, but through the writ, the Crown extended the King’s legal reach without having to involve him personally. Eventually it was such that the King’s justice started to supersede the functions of the other two courts. It was through the King’s court that the common law of England began to develop. The court, which was composed of a body of advisers who helped supervise the kingdom. According to Maitland, “the custom of the king’s court is the custom of England, and becomes the common law” (Maitland 184).

These are are just a few of the key examples that show that, far from being of its own origin, English law by the twelfth century was in many ways the product of foreign laws and customs. But like all proud and distinguished societies, the English aspired to find a greater sense of sovereignty and national identity of law -- the kind that can only be achieved by being beholden only to one's own laws and customs without the influences of older societies. It's for these reasons that England underwent the reforms it did to produce a distinctively "English" law.

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r3 - 30 Apr 2018 - 19:29:44 - JustinMaffett
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