The Formation of the English Common Law

Law and Society in England from King Alfred to Magna Carta

John Hudson

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351669979
• Edition: 2
• Topic: History
• Subtopic: World History
• Index: History

The Formation of English Common Law provides a comprehensive overview of the development of early English law, one of the classic subjects of medieval history. This much expanded second edition spans the centuries from King Alfred to Magna Carta, abandoning the traditional but restrictive break at the Norman Conquest. Within a strong interpretative framework, it also integrates legal developments with wider changes in the thought, society, and politics of the time.

Rather than simply tracing elements of the common law back to their Anglo-Saxon, Norman or other origins, John Hudson examines and analyses the emergence of the common law from the interaction of various elements that developed over time, such as the powerful royal government inherited from Anglo-Saxon England and land holding customs arising from the Norman Conquest.

Containing a new chapter charting the Anglo-Saxon period, as well as a fully revised Further Reading section, this new edition is an authoritative yet highly accessible introduction to the formation of the English common law and is ideal for students of history and law.

1

INTRODUCTION

Like modern film audiences, those listening to literature in the Middle Ages enjoyed nothing better than a good courtroom drama, preferably spiced with some sex or violence:

Perrot, who devoted his cunning art to putting into verse the deeds of Reynard and his dear crony Isengrin, left out the best part of his matter when he forgot about the lawsuit brought for judgment in the court of Noble the lion concerning the gross fornication perpetrated by Reynard, that master of iniquity, against Lady Hersent the she-wolf.¹

In the same period, legal metaphors structured or were incorporated within writings on many subjects, human and divine.² Participation in legal matters was widespread. A significant proportion of the male population participated in court decisions, a much larger proportion was involved in the maintenance of law and order.

Law operated in a society that combined various communities with strong hierarchic forces. Communities included the hamlet or village, the family, the hundred and shire, the lordship. Within the smaller of these, all members knew one another, and much of each other’s affairs; within the larger, this was true of the more important members of the community. Disputants, members of courts, participants in transactions, were unlikely all to be strangers. In such circumstances, one’s status, honour, and capacity for forceful action, mattered greatly. The potentially dangerous had to be restrained, deference maintained, support for retribution mobilized. Any idyll of the small community as always one of peaceful, egalitarian self-regulation should be rejected. It could be rumour ridden or dominated by a few individuals.

Moreover, lordship and kingship were as much part of the setting for law as were local communities. And it was often through local communities that royal and seignorial authority was exercised. Kings, particularly before c. 1166, commonly dealt with areas through resident local officials, rather than with a multiplicity of individuals through officers temporarily dispatched from central government. Compared with today or the nineteenth century, tenth-, eleventh-, twelfth-, and even thirteenth-century England was a country very little governed from the centre. Compared with much of contemporary Europe, however, it was heavily governed, by a combination of lordship, increasingly bureaucratized royal administration, and the exercise of local self-government. Such a combination of the local and the royal was to be essential to the emergence and form of the English common law.

The concept of law

Medieval historians have been usefully influenced by the writings of anthropologists, including some who deny the applicability of the concept of law to the societies they study. However, there can be no doubt that people in Anglo-Saxon and post-Conquest England wrote, spoke, and thought in terms of law and laws.³ It would be hard for any Christian people whose learned members placed great emphasis upon the Bible to do otherwise, and both English and Normans were also aware of the legacy of laws from their own pasts.⁴

Let us look more closely at vocabulary. Unlike English, many modern languages distinguish between written laws (lois in French) and law generally (droit). What of medieval usage? Let us here concentrate on the twelfth century, as a good period in which to explore possibilities and complexities.⁵ Our texts reveal a division similar to that just mentioned, in vocabulary but not in sense. Most of our sources are in Latin, and the first word of obvious interest here is lex, in the English or French of the time generally laga or lei.⁶ This can mean written laws, as in the key law for Christians, the Bible and especially sections of the Old Testament.⁷ It can also mean learned law, canon and Roman, or texts such as the Leges Edwardi Confessoris.⁸ It is sometimes used of a specific law, sometimes a new law, as when a chronicler wrote that Henry I made a law that anyone caught in theft be hanged.⁹ But lex can also mean all Law or laws, written or unwritten. It may refer to the laws of England or the good old law of Edward the Confessor. It is thus not clearly differentiated from custom.¹⁰ A closely related use comes in phrases such as ‘according to law’, ‘against law’, or ‘compelled by law’, employing ‘law’ to indicate in a general sense what is lawful or what is considered correct procedure.¹¹ ‘Law’ is also contrasted with ‘agreement’, thus giving legal activity confrontational connotations.¹² Sometimes, though, it seems to mean the terms of an agreement.¹³ Lastly, ‘law’ is used in a more technical sense to mean proof, as when a man has to ‘make his law’, thereby showing that he is a lawful man.¹⁴

Other relevant words are ius and rectum, both of which are the equivalent of the Old French dreit or of words based on the Old English riht.¹⁵ Ius is best translated as ‘right’, as in phrases such as ‘the land belonged to him by right’; ‘by hereditary right’; ‘rights of the church’.¹⁶ Very occasionally in the Anglo-Norman period ius is best translated as ‘law’, and such usage later became more common, probably under the influence of Roman and canon law.¹⁷ Rectum, on the other hand, is usually best translated as ‘justice’, as in phrases such as ‘do him justice’ or ‘for lack of justice’.¹⁸ On occasion, we do see ius being used where one might expect rectum, and vice versa.¹⁹ In general, however, usage suggests that when people spoke of dreit or riht, they were capable of employing them not in a vague and general fashion, but specifically and in more than one way.

People thus were sensitive to the vocabulary of ‘law’, and they were also well aware of a category of affairs that we can best term legal. Men might be categorized as peculiarly expert or learned in law, as ‘lawful’ or ‘law-worthy’,²⁰ or as ‘outlaws’.²¹ Certain bodies had a legal function, and were created for that special purpose.²² Some men were criticized as excessively active in lawsuits, particularly litigious:²³ such people made common what should have been unusual, for legal matters differed from the day to day. Legal customs were different from mere habits: the legal obligation to provide one’s lord with a hawk every year was qualitatively different from the habit of going hawking. Also, whilst clearly we are dealing with a society permeated by the Church and religion, some distinction could be drawn between legal and religious matters: there were punishments and there were penances; there were law books and there were penitentials, although these might be bound up together in manuscripts. The distinction may have grown as our period went on: in the late 1180s the author of the law book known as Glanvill could state that a mortgage ‘is unjust and dishonourable, but is not forbidden by the court of the lord king, although it deems it a type of usury’, usury being a sin.²⁴ Law was also differentiated from various forms of self-help and violence, although parties in a dispute might differ as to which forms of the latter were lawful.²⁵ The violence of disputing outside court is clearly distinguishable from the formalized fighting of the trial by battle, or even the rough and ready treatment meted out in an ad hoc court to the wrongdoer caught red-handed.²⁶

In part, what made law special was its relationship to some authority, especially an external authority. We can sometimes see medieval men and women ‘going to law’ rather like characters in a nineteenth-century novel. For several years in the mid-twelfth century, Richard of Anstey had to spend heavily and travel as far as southern France in pursuit of his inheritance case.²⁷ Travel to various authorities and appearance in various courts took litigants and their business outside the usual course of social life.²⁸ In these settings, some activities could be distinguished as ‘legal’, and contemporaries reflected this in the categorization of certain court activities as placita, ‘pleas’. Moreover, whilst court proceedings might involve much exercise of influence and presentation of a wide variety of argument, they also usually included some distinctive and formulaic elements, indicating the existence of a register of language that could signify legal affairs.²⁹ This is true also of legal activity other than courtroom disputes: for example, the drawing up of a charter in Latin had its own special phraseology.

Setting and language can thus distinguish the ‘legal’, and so too can appeal to norms, or what are usually referred to as customs. Customs are not simply neutral statements of what usually happens; rather they are prescriptions of established and proper action, prescriptions that carry authority.³⁰ Records of cases occasionally make explicit reference to the custom of the locality or the realm.³¹ People at the time allowed a place within law for some exercise of discretion, particularly by one with power. However, they also regarded law as involving the tempering of will by custom, notions of reasonableness, advice, or court judgment.³²

The categorization of certain affairs as legal does not make law at this time completely distinct from the rest of social life, nor give it as much autonomy as exists for modern or even later medieval law. Clearly the legal business of courts might have been hard to distinguish from their other activities, and not all arguments put forward in law cases were distinctively ‘legal’ in nature.³³ However, we shall discover that the category was becoming more discrete in the course of our period. Royal administrators, for example, came to specialize in either law or finance. Law came to have some systematic existence of its own, and experts were increasingly capable of manipulating it in order to obtain results distant from the social norms of the day.³⁴

The functions of law

Law is one means whereby societies are regulated and whereby members of those societies achieve their ends. Law includes substantive elements, determining rights, claims, obligations; one example would be a custom that if an eldest son survives a land-holder, he will succeed to the whole of the inheritance. It also includes more managerial matters, concerning the process of succession, the drafting of a charter, and the paying of compensation. And it includes the administration of justice, for example the sending of writs, the holding of courts, the giving of judgments.

A first function of law, and the one that medieval, like modern, people might have identified most readily, was to keep the peace and restrain wickedness. In particular, in a society where violence was frequent, law should protect the weak, especially those lacking any more immediate protector. In such circumstances it was often necessary for law to be backed by its own violence, notably the punishment of offenders, both because it was felt that they deserved the penalty and also to deter others.³⁵

The settlement of disputes, be it through punishment or other means, is another of the functions of law. The settlement may be achieved in or out of court but in either case law provides certain guidance and constraints that may aid the process, removing or channelling emotions that might ...