English Legal History and its Materials
The Englishry of the English Law +

-Ryan Holmes - 28 Nov 2017

Section I The Englishry of the English law owes a great deal to the diverse traditions that contributed to its structure and substance. However, to ignore the influence of the larger social, political, and economic pressures shaping the laws of England is to neglect the true drivers of the development of the peculiar nature of the English legal system. Chief among these forces are the consolidation and expansion of royal power, and long running power struggles between the Crown and the nobility. This inquiry demands a definition of Englishry, or what makes the English legal system historically distinct. Using broad strokes, this quality of the system can be defined as the flexibility derived from its case-driven nature, encompassing both the absence of a comprehensive civil code and the centrality of judicial decisions. Englishry also includes the notion that the power of the monarch, at least to some extent, is constrained by the rule of law. Notably absent are revered institutions like trial by jury and Parliament, for although they are essential to the English system, they are not unique, and have scattered analogues across Europe.

Section II

The various sources of the English law laid the foundation for legal system and enabled its later development and growth. The primary substantive source for the English law is the Anglo-Saxon law before the Conquest. It was influenced by several Germanic legal traditions and was by no means uniform across the entire country. Its concerns were intensely local, and it was underpinned by collective responsibility and community justice. Though records are sparse, compurgation seems to have played a significant role is the decision of cases. The Normans brought two particularly significant innovations to the English legal system. The first of which was the development of a more robust royal administration, epitomized by projects like the Domesday Book, that allowed for the development of a truly national legal system and more efficient taxation. The second was the imposition of feudal tenure, a radically new system of land ownership. This combination of the Anglo-Saxon focus on local custom and community participation with Norman central governance and the military tenures provided the starting point for the English law, but the distinguishing aspects of the system’s structure and substance was determined by subsequent events.

Section III

The consolidation and expansion of royal authority and administration in the centuries following the Conquest led to the development of a national court system that governed the entire realm and developed new jurisdictions, causes of action, and novel uses of fictions to fit the legal needs of their times. The latter half of the 12th century saw dramatic increase in both royal power and the reach of national courts. Not only did royal justice begin to travel independently from the person of the king with the development of the eyres and later the assizes, but the judicial functions of the curia regis were functionally shifted to permanent courts with the creation of the Exchequer of Pleas, the Court of Common Pleas, and later the King’s Bench. The reign of Henry II saw the development and subsequent judicial use of novel disseisin and mort d’ancestor to ameliorate the abuses of the Anarchy. Later times saw the Chancery develop to remedy the perceived rigidity of the common law.

Once established, these courts adopted new procedures that drove the law forward to meet the legal needs of contemporary society. This was occasionally done in novel ways. The Exchequer and King’s Bench greatly expanded their own respective jurisdictions with the Writ of Quominus and the Bill of Middlesex. In the 14th century, the common law courts drove the development of early tort law by expansively interpreting the vi et armis component of the writ of trespass as was done in Rattesdene v, Grunestone (YB 10 Edw II (54 SS) 140) and later doing away with the need for an allegation of force with the emergence of trespass on the case. A similar process is seen in the King’s Bench with development and affirmation of the use of assumpsit, much to the benefit of plaintiffs and the legal profession. Slade’s case Trin. 44 Eliz. 4 Co Rep 92b. The centrality of judicial action to substantive legal development and the national scope of these royal courts are part and parcel are part and parcel of the English law. Their existence is due in large part to their Norman origins, but the need to meet social, political, and economic needs was the driver of their subsequent development.

Section IV

Struggles between the Crown and the nobility, exacerbated by Britain’s relative physical isolation from the Continent and social and economic changes in the latter medieval period, led to the British monarchy being more constrained by the rule of law than its continental counterparts. For example, the rights of Parliament granted in the Magna Carta were can be temporary compromises to appease an emboldened and restless baronage after the loss of the Angevin’s continental possessions. These rights, through John’s untimely death and their subsequent reaffirmation, grew to eventually topple kings. In the land law, changes in the economy and the irrelevance of knight-service in the face of the yeoman archer led to a crisis of feudalism, and set off centuries of conflict between landowners and the Crown over the collection of incidents and the passage of land. This conflict dragged on for centuries from Quia Emptores, to the respective Statutes of Uses and Wills, ultimately leading to a defeat of royal power with abolition of feudal incidents in the 17th century.

Surely the abolition of the incidents is not the most striking illustration of the defeat of royal power in the 17th century. Events of January 1649 and December 1688 seem more salient, for example.

Section V

Though this essay speaks in broad terms and excludes many important themes, it seeks to establish that the diverse sources of the English law, while providing an essential foundation, are not enough to account for the development of the English legal system’s defining characteristics. The development of the medieval and early modern world, and the effect of these pressures on a relatively isolated island society, is more responsible for the distinctive character of the English law than its beginnings in Anglo-Saxon tradition and Norman governance.

Section titles would be useful, if there is a point in the divisions now indicated by number only.

I think the point of the essay, to quarrel with the question, is valid as a strategy. Whether you have adequately quarreled with the question is uncertain in this draft, so you could strengthen that to advantage. The "Englishry of English law" is a concept you can deny, stating that there is nothing particularly distinctive about the common law against the European background. Or you can accept the idea of diversity in outcome and argue that diversity of population, language and history is not the primary reason for the atypical evolution of the English law. Both are feasible lines of argument, though the first requires particularly strong will and good evidence, as it is quite contrarian. To say, however, that starting from "the Englishry" of English law requires that we "ignore the influence of the larger social, political, and economic pressures shaping the laws of England" does not wash. This is more about changing your framing top and bottom than about the content of the essay itself.

SECOND PAPER Introduction Surveying the development of freedom in the English law over the course of several centuries, it becomes immediately apparent that there was no overarching plan or design that drove the process. It was a haphazard and decidedly uneven affair. Each of the incremental advancements in the freedom of land and people was in response to the events and circumstances of the day. These historical contingencies created tensions in society between various factions, whether they be the baronage and the Crown, mesne lords and their vassals, or the peasantry and the nobility as a whole. Change was largely brought about through compromise, but progress was rarely linear or guaranteed. Often, but not always, the faction attempting to maintain or reassert the status quo would make an initial attempt to resolve the tension through taking more restrictive measures, which frequently left land less freely alienable and individuals more bound to the land and their lords than before. When present, these restrictions usually precipitated a drastic reaction, either through violent uprising or legal innovation, that created the need for a new compromise. This grand bargain, or gradual evolution over time, generally left people freer and land more alienable. Tracing these patterns from the signing of the Great Charter through the Statute of Wills, it is clear that contingency, and response to it, are of paramount importance in the history of the English law. Magna Carta The 1215 signing of the Magna Carta is a textbook example of how an incremental increase in the freedom of people was brought about by an attempt to resolve the immediate social and political tensions of the age. John was an unpopular king buffeted by conflicts with an ever more assertive Church and almost constant military failure in France. Faced with rebellion by the baronage in the wake of the permanent loss of Brittany and Normandy in 1214, John’s hand was forced into making a series of guarantees to the nobility and the church that seemed to ensconce a modicum of due process in the English legal system. Though not considered a permanent settlement at the time, John’s untimely death and the subsequent repeated affirmation by later monarchs lead to the minimal guarantees of due process contained in the Magna Carta becoming the symbolic foundation of the English legal system. The Crisis of the 14th Century: Plague, the Statute of Laborers, and The Peasant’s Revolt Perhaps the most important and wide–reaching advancement in individual liberty during the medieval period was the gradual weakening of serfdom brought about by tumult of the second half of the fourteenth century. The immediate aftermath of the Black Death saw wages rise dramatically for agricultural laborers and increasing movement of people seeking work and demanding better conditions. Attempting to stem the tide and reassert the pre-plague status quo, Parliament passed the Statute of Laborers in 1351, which froze wages and prohibited the movement of workers. The Statute and its accompanying Ordinance were weakly enforced, but contributed to a general atmosphere of oppression of the working classes in the Second As the economic crisis deepened in the 1370s, peasant discontent rose, and coupled with new theological reform movements like Lollardy, exploded in the Peasant’s Revolt of 1381. Though the jacquerie was ultimately put down, it posed a significant shock to the system, threatening London and executing the Archbishop of Canterbury along the way. Despite remaining on the books, the Statute of Laborers proved ineffective in restoring pre-plague conditions in the fact of the demographic and economic pressures that were weakening serfdom. The Revolt did not bring an immediate end to the institution, but it withered away in its aftermath, becoming almost nonexistent as a personal status in England by the end of the fifteenth century. The importance of social and demographic forces in driving the process is perhaps the greatest example of contingency advancing the freedom of individuals in the English law. Uses, Wills, and the Reformation: Land Reform in the Reign of Henry VIII

  1. ’s Statute of Wills marked the end of a decades long battle between landowners and the Crown over the ability to freely dispose of and control property after death and the Crown’s entitlement to its feudal incidences. Ultimately gaining the right to devise land through will, the landowners emerged victorious. Through a combination of legal innovation and outright rebellion, the landowners were able to free themselves from the strictures of mandatory primogeniture and excessive royal interference. The stage was set with the passage of the Statute of Uses in 1536, an attempt by the Crown to end abuses of beneficial ownership and stymie the avoidance of the payment of incidents. These goals were almost immediately undermined through clever lawyering and the development of the trust. Discontent over the Statute of Uses was a significant contributing factor the eruption of the Pilgrimage of Grace that fall. Gaining tens of thousands of followers and lasting for months, the rebellion was the most significant popular uprising against the religious and economic reforms of Henry VIII’s reign. Though royal authority was reestablished across Yorkshire in 1537, the Pilgrimage placed enormous political pressure on the Tudor state. This eventually led to the passage of the Statute of Wills in 1540, which enabled English landowners to devise their land through wills for the first time, gaining the freedom to dispose of their land as they saw fit, avoiding the specter of royal escheat. Through this political compromise, the landowners were able to secure a significant advancement in the freedom of land.
Conclusion Taken as a whole, contingency played a decisive role in the development of freedom in medieval England. This halting path to liberty, created by compromise and driven by the needs and contingencies of a given generation, shows that freedom in the English law was brought about by an organic and all too uncertain process. The importance of events and the resolution of immediate social problem demonstrates that English liberty and was not the created through a grand design or derived from ancient indefinable rights, but the product of a centuries-long human struggle.

Post Script: I know it needs work, especially in the Magna Carta section, and some citing/ more of a legal dimension, but I was pressed for time this week. Will revisit in the next week or two.


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r4 - 22 Dec 2017 - 18:37:49 - RyanHolmes
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