English Legal History and its Materials

I) Introduction

The “Englishry of English law” is a result of its diversity of origin, but the origins don’t tell the complete story. England’s legal history is a melting pot, not a salad bowl. Up to and including the Norman Conquest, English history is a pile-up of diverse influences, but after the Norman Conquest England was relatively isolated. Many important English legal concepts developed from an outside influence being subjected to internal English pressures. The “Englishry of English law” may have had diverse origins as its ingredients, but unique historical developments blended them together into English law.

II) Defining “Englishry”

There exist a few characteristics that England uniquely, or almost uniquely, possessed. Then there are other traits which were not unique to England but were equally or more central to the English legal system. So, is “Englishry” the uniquely English traits, or the definingly English traits? Englishry must be the definingly English traits, otherwise if England’s legal system had no unique traits, it could not be called “English”. Thus defined, the Englishry of law was characterized by some unique features such as the circuit system, the sheriffs, the lack of a civil code, and the writ system, and some widely used features such as juries, a monarchy, and a parliament.

III) The Ingredients: Diverse Origins

A) Diverse Groups

There’s no doubt that England had many diverse influences, almost all of them conquering forces. The Celtic Britons were subjugated by the Romans between the 1st and 6th centuries CE. After Roman rule collapsed the Anglo-Saxons eventually established seven separate kingdoms spanning most of England. Two hundred years later the Danes began a generations-long invasion, ultimately claiming almost half of England. Finally, in 1066, the Norman William successfully invaded and conquered England. The composition and homeland security of England was relatively stable after that, bolstered by its isolated status as an island apart from the continent. This combination of successive invasions from different groups, followed by relative stability and isolation is the true “Englishry of English law”.

B) Diverse Influences

Did these diverse groups have long-lasting impacts on English law? The Celts left little behind but Shire “names such as Norfolk and Suffolk [which] suggest ancient tribal communities.” The Romans followed, but according to Baker “[w]hether their colonisation of Britain made any lasting impact on native traditions is open to debate.” That said, the Romans certainly introduced written documents and seals into the legal system, which would eventually form the backbone of the definitively English writ system. The Romans also left behind at least some legal traditions that the Anglo-Saxons picked up, such as the use of Latin and the elements of certain crimes such as treason, based on the Roman law of maiestas. Independently, the Anglo-Saxons developed at least some of the persistent structure of English government, which was in place “[b]y the tenth century”, such as “a single kingdom of England… [an] effective monarchy… [and] a homogeneous scheme of local government… [dividing governance units into] 'shires' (counties), which have remained substantially the same in name and shape down to the present day [and which]… correspond to old Saxon kingdoms.” Judicially, the Anglo-Saxons introduced a court system available to the poor and rich alike which had to meet at specified intervals. The Anglo-Saxons’ co-occupants, the Danes, indirectly helped develop the feudal system by necessitating its use as a military tactic. The Danish names for these feudal titles, notably “eorl”, also remained. William and the Normans ousted the Anglo-Saxons and Danes were ousted from government. For the last “century and a half” Normandy had been “the best-ruled state in Europe,” and William was paradigmatic of the Normans’ disciplined leadership. The lasting impact left by the Normans on English legal history was bringing “precise and orderly methods into the government and law of England.” This governmental discipline manifested itself as centralization under the king.

IV) The Melting Pot- English History

A) Isolation

Any stew must simmer for a long time. If the period up to and including the Norman Conquest was the frantic dicing and slicing of ingredients thrown into a bowl, then the period after the Norman Conquest was the simmering, where disparate flavors mixed together to create a unique profile. After the Conquest, England was never successfully invaded again. Consequently, after 1066 most of the ingredients of English legal history were in the pot, and it is accurate to say that they had extraordinarily diverse origins. But the “Englishry of English law” does not lie “precisely” in its origins because English legal history only begins there. What happened next was those diverse ingredients reacting to and combining with each other in unpredictable ways that created unique results.

B) The Pressure Cooker

Once the lid closed English history is what cooked the ingredients and it was the combination of English history with various ingredients that yielded the “Englishry of English law.” Two ingredients stand out in the impact they had. First, English feudalism, which was strengthened by the Anglo-Saxons as a military strategy to help them fend off the Danes. Second, the Norman inclination towards centralized government. The Domesday Book resulted from combining these two concepts then mixing in the historical setting of 1066: that after the centuries of tug-of-war between the Anglo-Saxons and the Danes followed by the tumult of the Norman Conquest, England needed unified record-keeping. Quia Emptores also resulted from combining these two concepts with a distinct moment in English history: the centuries-long abandonment of knights as a military and feudal unit in favor of the yeoman.

V) Conclusion

The diverse origins of English law are but-for causes of its “Englishry”. But to say they are “precisely” its cause ignores that the diverse origins were acted upon, shaped, and molded by the unfolding of English history over a thousand years. This process created the “Englishry of English law” from the raw materials of diverse origins.

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r3 - 14 Apr 2018 - 21:00:29 - LukeRushing
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