John Baker, Introduction to English Legal History
English written law, from communal justice to personal authority
Sir John Baker Q.C., LL.D., F.B.A. wrote:
PART ONE
CHAPTER 1: Law and Custom before 1066
… Around the time of the Norman Conquest [1066], England had neither a national judicature nor a legislature in any developed sense, and there were no lawyers. There were decision-making bodies, from the king’s council down to the village meeting; but in such assemblies no clear separation could have been made between the processes of adjudication, legislation, and administration. Most decisions settled the matter in hand and were not expected to do more. They could not reach far into the future, or rest upon precedents set in the past, because no official records were kept. That is not to suggest that there was no law. People spoke of law, and of custom. Some of this law was written down; most of it was shared memory as to the way things were done. But it was a long way from the kind of jurisprudence known to lawyers in later medieval England as the common law.
In the absence of centralizing institutions, customs varied from one community to another. To the extent that common features may be discerned, the unifying force was not a common law but the general social and moral assumptions of the age, or perhaps the natural instincts of mankind at particular stages of development: broad parallels are often found to transcend national and geographical boundaries. Going back as far as it is possible to go, our first glimpses of ancient British customs are obtained through Roman eyes. The learned men among the Britons passed on their traditions by word of mouth and thought it inappropriate to commit them to writing. Most of the people were held in servitude to a native military nobility, but there was a caste of priest-judges, called druids, who spent years learning the old Celtic customs by rote (in verse-form) and were called upon to decide controversies both public and private. Julius Caesar, who invaded Britain in 55 BC, wrote a brief description of these druids. Their cult had spread from Britain to Gaul; but of their customs (which included human sacrifice) he related very little.
The Romans themselves had a sophisticated jurisprudence, and to them the usages of the British had no more than anthropological interest. Whether their colonization of Britain made any lasting impact on native traditions is open to debate. But Roman law was certainly in operation, at least for Roman citizens. The famous jurist Papinian is known to have heard cases in the forum at York, and the first reported English case was heard before Javolenus Priscus, as legatus juridicus of the province of Britannia, around 85 AD. When the Romans withdrew from Britain at the beginning of the fifth century they left behind many tangible remains, from stately homes and temples to coins and jewellery, but their law was carried away in their heads. Having cast off the Roman yoke, the inhabitants returned to their old ways without impediment in their various small kingdoms. But there was little or no continuity in the confusion which followed.
During the next two centuries the British mainland was subject to repeated waves of immigration from across the North Sea. The Angles and Saxons pushed many if not most of the Celtic people back into the west of the island, into Wales, Cornwall, and Scotland. The Germanic immigrants differed from the Celts in religion, language, and physical appearance, and they brought with them usages which even the Romans had noticed as being different from those of Britain and Gaul. Whether their customs completely displaced those which had prevailed before their arrival, or were to some extent blended with them, is a question which cannot be answered definitively for want of written records. A more uniform influence from the same period was that of the Christian Church, which after the arrival of St Augustine’s mission from Rome (597 AD) vied with the old religions for spiritual authority and rapidly prevailed.
The Anglo-Saxons were the first native inhabitants of England of whose legal usages anything much is known, because they were the first to introduce written laws. The earliest surviving English legislation, that of King Æthelberht I of Kent (d. c. 616 AD), was put together in about 600 AD and has traditionally been associated with the conversion of that king by St Augustine a few years earlier. The early Christian kings relied on the counsel of their bishops in temporal as in spiritual a airs, and the clergy had the literary skill to initiate the technique of government through the written word. Bede wrote, two centuries later, that the new laws had been made ‘according to the Roman example’, and some were indeed taken up with ecclesiastical matters. Recent research has raised the contrary possibility that Æthelberht’s laws were in fact those of the last pagan king. They were written in Old English, not in clerical Latin; they recorded pre- Christian usages; and it seems likely that by the ‘Roman example’ Bede did not mean that of the Church but that of the Roman emperors, whom Anglo-Saxon kings sought to emulate by issuing laws as a display of imperial authority.
Whatever their inspiration, the Anglo-Saxon ‘codes’ did not aim to codify all existing customs; nor did they set down the theoretical or procedural framework within which they operated. Even a careful reading of the codes conveys little sense of how things worked. They were directed at readers who could be presumed to know that already, and offered some rules to govern particular situations where the outcome must previously have rested on memory or discretion. Prominent in them, as in most Celtic and Germanic codes, was the fixing of tariffs for the blood-money payable in lieu of feuding. It was no easy matter for arbitration to assuage the passion for retribution when a person felt dishonoured by a wrong: honour demanded full satisfaction. But it was at least equally honourable to be merciful and to accept suitable monetary emendation. The use of pre-ordained scales of compensation, calibrated according to a complainant’s rank and the gravity of the affront, promoted peace without compromising pride. It was also more consistent with Christian teaching than revenge-killing. The written laws could facilitate this process without needing to identify and codify any underlying principles. They assumed a pre-existing range of wrongs but were little concerned with definitions or defences. Questions about blame, accident, mistake, and so forth, must have arisen, but they were presumably dealt with either by discretion, outside the law, or by reference to unwritten norms understood by everyone in the locality. Even more glaring by its absence is any clear guidance as to the forms of property-holding, the transfer of immovable property, or the incidents of lordship. Such matters were either too obvious or too variable to be codified.
The Danish invasions of the ninth century subjected the eastern parts of the island to new Scandinavian influences, the ‘Danelaw’. The very word ‘law’ is believed to have been given to the English language by the Danes (laga). The ensuing struggle between the Anglo-Saxon peoples and their common enemy gave King Alfred of Wessex [r. 871-899 AD] his opportunity to begin the unification of the former into the single kingdom of England, a process which was completed under King Æthelstan [r. 925-939 AD]. Alfred is reputed to have taken a deep interest in justice, and to have reviewed disputed decisions made by his subjects. In the prologue to the code which he promulgated for the West Saxons in the 890s, it is stated that he and his advisers had studied the laws of Æthelberht I of Kent, Ine of Wessex [d.. 726 AD], and Offa of Mercia [d. 796 AD], together with the Bible and the penitentials of the Church, before embarking on their task. This may therefore have been the first attempt to compare and evaluate the miscellaneous customs of the English.
Alfred’s written laws were still far removed from anything like comprehensive common law. But they were an attempt to impose uniformity in certain limited fields, and as such set a precedent for legislation by the kings of England. The precedent was followed by the Danish King Cnut [dates], during whose reign a restatement of the laws was compiled in 1018 by Archbishop Wulfstan of York, and enlarged in the 1020s. The laws of Cnut, especially in the redaction of c. 1140 which was fictitiously attributed for political reasons to King Edward the Confessor [r. 1042-66], became the main source of old English usages for legal and historical writers after the Norman conquest. Under the guise of the Leges Edwardi Confessoris they achieved an almost mystical authority which inspired Magna Carta in 1215 and were for centuries embedded in the coronation oath. Nevertheless, despite all this legislative activity, England was still governed more by unwritten and variable custom than by uniform and settled law. The principal reason for the absence of common law at this stage was the absence of any national judicial machinery to require it.
COMMUNAL JUSTICE
It is difficult to imagine societies without legal systems of some kind, but all social arrangements must have a beginning. Custom and religion perhaps come first. They are forces in the community to be upheld and maintained as a matter of tradition, social obligation, or religious conviction, or usually all three. But legal sanctions necessitate the imposition of forces which in early societies, as in the state of nature, belong to individuals who have power over others. For people kept in a state of servitude, the will of their master or lord takes the place of law. As between those of autonomous or ‘free’ status, the suppression of private force can only be achieved by investing a powerful person, or the community at large, with a greater force.
If one person takes something from another, the obvious remedy is for the victim to try to take it back and also exact revenge; when it is also the only recourse, no-one has any rights beyond those which he is physically able to protect for himself. In the absence of strong government or judicial control, justice is therefore primarily a matter of self-help: of forcible entries, reprisals, blood-feuds, and private warfare. One of the first causes of a legal system is the desire to prevent or discourage feuding, or at least to regulate it, and to offer some peaceful alternative. It was a slow process. In the first visible stages of the story we see the community playing a role, as a body in public meeting, by encouraging the parties to settle their differences or submit them to honourable arbitration. If the parties could not agree, the community would impose its own solution. It did not decide between them as a court would decide today, by applying rules of law to proven facts; but that is not the only way to resolve disputes.
Procedure and Proof
The ‘moot’ or folk-assembly, first mentioned in the Kentish laws of the eighth century, was of prehistoric origin. It would be anachronistic to regard it, when the dim rays of history first fall upon its outlines, as a court of law. It was an open-air meeting of the populace to discuss local affairs under the presidency of an ealdorman, or his deputy, assisted in some places by a group of ‘doomsmen’. The community issued no writs and kept no records, and in consequence little is known about its doings. Decision-making was certainly on the agenda, and interested parties might be represented by supporters; but there were no legal practitioners.
A communal assembly might be called upon to make different kinds of decision, and historians still puzzle over how far their proceedings in contentious matters rested on law and custom, how far on discretion, and how far on appeals to the supernatural. No doubt it depended on the nature of the business. One kind of decision was about the enjoyment of landed property, and this required a choice between rival claims; factual evidence in support of the claims and of the applicable customs would be considered before deciding how to proceed. Another was about something specific which was alleged to have happened – for instance, a wrong done, or a contract made and broken. Many disputes involved both.
Where a case turned on disputed facts known only to the parties, its resolution could not be a matter of policy or discretion. Nor was it decided by evaluating conflicting evidence in order to reach a human verdict. Resort was had instead to ‘proof’ by oath, which might have to be backed up by a physical test (an ‘ordeal’). If the defendant was allowed the benefit of proof by oath, he proceeded to swear on the holy gospels to the truth of his case, in general terms and without cross-examination. In the lesser form of proof known to later generations as wager of law, he was expected to bring with him some neighbours as ‘compurgators’ or ‘oath-helpers’ to back up his word.
But when a bare oath was deemed insufficient, either because of the gravity of an accusation or the unreliability of a disreputable party’s word, it might have to be reinforced by an ordeal. In order to put the defendant to this hazard, a plaintiff was required to establish a prima facie case under oath. In this he would be supported by his ‘suit’, the group of followers whom he brought with him. The suit had some affinity with witnesses, and they may have been subject to examination as to competence, but their testimony was part of the interlocutory process and did not affect the final outcome. Ordeals involved an appeal to God to assist in the detection of perjury, and they required priestly participation to mediate the necessary rapport with the deity. They were pre-Christian in origin, but several forms of ordeal were recognized by the early Christian Church. In England they usually took the form of fire or water. In the former, a piece of iron was put into a fire and then in the party’s hand, or else the party had to plunge his hand into boiling water to retrieve a stone; the hand was then bound, and inspected a few days later: if the burn had festered, God was taken to have decided against the party. The ordeal of cold water required the party to be trussed up and lowered into a pond: if he sank, the water was deemed to have ‘received him’ with God’s blessing, and so he was quickly fished out.
After centuries of acceptance, the ordeal became the subject of a prolonged intellectual debate about both its legitimacy and its efficacy. It was not clear how God could be expected to answer human questions. What if he decided not to intervene at all, but to leave the matter to be settled by his ordinary laws of nature? And how could one ever know whether he had intervened? There is some evidence that those who administered ordeals, perhaps because of such doubts, began to feel a responsibility to facilitate the result they considered right: for instance, by using a less hot iron in cases where suspicion was weak, or by interpreting a burned hand liberally. In the last days of the ordeal, the acquittal-rate was surprisingly high. Some canonists advocated the interposition of a rational approach to evidence, while others considered it inappropriate for priests to become involved with secular justice at all.
But there was a more fundamental difficulty. It was doubted whether mortals had any right to invoke God’s miraculous intervention in mundane affairs. In 1215 the Lateran Council, after weighing these problems, took the decisive step of forbidding clergy to participate any more in ordeals. This brought them to a sudden end, and led in England to the introduction of the criminal trial jury. The decision had no impact on wager of law, which did not depend on a priest conjuring up immediate divine assistance, or indeed on oaths in general. Proof by simple oath and compurgation therefore survived, and passed into the common law. But compurgation worked in the same inscrutable manner as the ordeal. There was no question of going behind it into the facts of the case, let alone of having to weigh whether the oath (if duly supported) was true.
Both the oath and the ordeal were calculated to obviate a human decision on a disputed point of fact. This is commonly summarized by saying that, under this old system, judgment preceded proof: once it was adjudged that one of the parties should swear or perform a test, there was no further decision to make except whether he had passed it. It has also been characterized as ‘irrational’, in the sense that it did not involve human reason. But this should not be misunderstood. The wise men of each community needed to know how to regulate disputes, when and how proofs should be imposed on disputants, what liturgy should be used, and what should be done when the result was known. Here was room for argument and human discretion, for consideration of customary rules, and perhaps for the evaluation of merits in deciding which party should swear. If the case was pressed to ‘law’ (wager of law), the real decision was taken by the compurgators, though they were supposed to focus on the credibility of the party rather than the facts of his case.
It was a workable method of resolving disputes, even though the critical decision was not made by a court applying legal reasoning to facts established by evidence. But the proof was the end of a lawsuit; and, in the absence of any possibility of reviewing a judgment of God, of centralization to ensure uniformity from place to place, or of records to ensure consistency over time, the old ways of doing things could never have generated a body of legal doctrine comparable with that of ancient Rome or … England. Legal principles were not worked out in detail, because argumentation was limited to what we now call procedure, modified by discretion. If that seems a weakness, it is so only to later eyes; those who did not know of law as a coherent system of reasoning were impervious to its absence.
The Old English Assemblies
Of the structure and distribution of communities in Britain before King Alfred we have but a faint picture, based largely on archaeology and the study of place-names. There were at one time at least a dozen kingdoms, some large and some small. Even when powerful kings in the ninth and tenth centuries began to unify and dominate the greater part of what is now England, we need not suppose that the average inhabitant – except in border territory – thought of himself as English or had much consciousness of anything beyond the little world of his own village and the road to the nearest town.
By the end of the tenth century there was a single kingdom of England, and with an increasingly effective monarchy came a more homogeneous scheme of local government. The whole country was divided into ‘shires’ (counties), which have remained substantially the same in name and shape down to the present day. Their origin is obscure, and probably not uniform. Some shires south of the Thames, and also Essex and Middlesex, correspond to old Saxon kingdoms, while names such as Norfolk and Suffolk suggest ancient tribal communities. But most counties derive their names from a town at or near the centre, and it is likely that these represent a northward extension of the shiring system from Wessex for military and tax purposes. Cities and boroughs had been established as fortified trading centres, or as royal strongholds against invasion, and in some cases by capture had become the strongholds of invaders; they were therefore focal points in a defensive system under which shires were allocated to provincial royal commanders called ‘ealdormen’ or earls. The laws of Ine of Wessex (c. 690 AD) refer to justice (riht) being demanded before the ‘shireman’ – perhaps the ealdorman’s deputy, perhaps the king’s reeve – and this seems to indicate a shire moot which included judicial deliberations among its functions. By the time of King Edgar (r. 959-979) every shire gathered twice a year, attended by the ealdorman and bishop, to discuss the weightier affairs of the region.
The laws of the tenth century also mention smaller units called ‘hundreds’, each of which was under the responsibility of a hundredman. The hundreds were further subdivided into ‘tithings’, which were notionally groups of ten men (or families) under the responsibility of a tithingman. The sorting of the population into hundreds and tithings was a means of maintaining good order and of raising taxes to support the king. The hundreds held meetings monthly to transact the ordinary business of the community; and twice a year, at what was later called the ‘view of frankpledge’, the tithings were reviewed to make sure that every free man was ‘in borh’ (pledged to good behaviour) and that crimes were being duly presented for investigation. Although most hundreds fell exactly within the bounds of a shire, there was no structural relationship between the two institutions; within their geographical limits, their meetings were equally sovereign, in the sense that they followed their own customs without interference from outside. It is likely, however, that only the more important or troublesome matters found their way to the infrequent and solemn shire moots.
The boroughs likewise had assemblies, variously called burghmoots, portmanmoots, or (when held indoors) hustings. They continued to flourish into later medieval times and beyond as expeditious mercantile courts. Since the borough performed similar functions for townspeople, both administratively and judicially, as the hundred performed for country dwellers, borough and hundred were reckoned to be mutually exclusive. In the City of London, the husting was really the equivalent of a shire, and it came to displace the old shire moot. The London equivalent of the hundred was the ‘ward’, and the administrative division of the City into wards has continued largely unchanged to the present.
The smallest assembly was that of the village. Although it may often have coincided with a tithing, it was not a subdivision of any of the other units but simply a conglomeration of dwellings corresponding in many cases to the later ecclesiastical and administrative unit of the ‘parish’. The settlement of a group of families in a village, with open-field farming, must have necessitated at least a communal agricultural policy, and it is possible that a village meeting was once the place to settle it. In the centuries after the Norman conquest the community of the vill exercised police functions, independently of manorial feudalism; but any role it may have had as a forum for small-scale administration was taken over by the manor and (much later) the parish, and it did not survive as a distinct entity.
FROM COMMUNAL TO PERSONAL AUTHORITY
The earliest forms of justice were not conceived of as emanating primarily from a ruler, from a ruler’s councillors, or from a legislative assembly. Anglo-Saxon kings were sworn at their coronation to see equity and mercy done in all judgments, but there was no mention of law-making in their oath; law, of some kind, was a given state of affairs transcending royal authority. After 600 AD the promulgation of laws in writing was practised regularly as a symbolic display of kingship, but such laws presupposed a mass of unwritten customs or assumptions which they were not intended to displace. Even King Alfred’s great doom-book was an edition of earlier laws or legal notions, with incidental improvements suggested by recent decisions on particular problems, rather than a work of jurisprudence recording or recasting first principles. There are a few allusions in the royal legislation of the later Anglo-Saxon period to ‘folk-right’ (folcriht), denoting a communal or customary conception of justice, and Alfred’s last will mentions an instruction to his own council to apply folk-right in a particular matter. But this unwritten law of the people was not expounded or elaborated by judges and jurists. It was administered by those attending shires or hundreds as ‘suitors’ or as doomsmen. And the position was not greatly different where jurisdiction was allocated to individuals.
The jurisdiction of individuals other than the king was usually expressed in terms of lordship. Eventually political overlordship would merge with feudal lordship and become inseparable from the tenure of land; but Anglo-Saxon lordship could arise from a ceremony of ‘commendation’ or fealty, or (more usually) from de facto submission to another’s rule and protection. That it was the norm in the tenth century is evident from the laws of Æthelstan, in which a lordless man is treated as suspicious. In some places lordship may have evolved from prehistoric traditions of chieftainship or kingship; in others it was doubtless a result of opportunism. The roots of authority lay not in political or legal theory, for of that there was little, but in the fact of personal dominance. The notion of seignorial authority, the authority which went with being a lord, would give rise in the Norman period to a separate system of courts existing alongside the counties and hundreds. But how far this was the position before 1066 is less than clear.
By the twelfth century, at any rate, every lord, from the upper levels down to the lowest, seems to have been able to hold court for his ‘men’. Most surviving evidence relates to the lowest level. Peasant communities were organized into ‘manors’, which were the estates surrounding a lord’s mansion house or ‘hall’, small units of feudal government sometimes coterminous with a village but often smaller. The lord’s court, or hall-moot, might make social regulations (later called bye-laws), deal with disputes about contracts and torts, and punish minor crimes, in addition to despatching agricultural and feudal business. For most English people it was the main authority that impinged on their daily lives. Yet, however powerful he might be, the lord was not supposed to be an autocrat. The manorial court belonged partly to the feudal and partly to the ‘communal’ scheme of things. Although the lord or his steward presided, the free men made the decisions, and the court was the means whereby the customs of rural communities were put into effect.
The highest example of the personalization of authority was the ascendancy of the monarchy, and its consequences were far-reaching. Once England had become a united kingdom, the king established his formal governmental authority in the boroughs, hundreds, and shires by placing in all of them his own officials, called ‘reeves’, to watch over their operation. The laws of Edward the Elder (d. 925 AD) and Æthelstan (d. 939 AD) make plain the duty of the king’s reeves in boroughs and hundreds to see that everyone received the benefit of the customary law (folk-right) and the ‘doom-book’ (presumably Alfred’s code) in those assemblies. Some hundreds, perhaps by royal grant, came under the control of lords, and some hundredal jurisdiction came to belong to lords within their manors; many such lords were said to possess sake and soke, that is, the right to hold court, to compel suitors to attend it, and to receive the monetary fines paid by offenders. Even in these cases, however, the king retained some supervisory control and might deprive a lord who abused his authority. The shire remained more closely in the king’s direct control, and the king’s shire-reeve (or sheriff), frst mentioned in the eleventh century but probably of earlier origin, would soon become one of the most powerful officials in the country.
The punishment of crimes was seen from the start as an important aspect of royal government. In the twelfth century all serious crimes would be brought under the jurisdiction of the king or his sheriff. But already in the Anglo-Saxon period there was a notion that some forms of wrongdoing required punishment in the public interest, and that the king had an interest in the process. The king benefited as well as his people, since the jurisdiction brought in a valuable stream of revenue, either collected through sheriffs or granted out to lords as a privilege. It is principally in the criminal sphere that we may detect the beginnings of a body of law common to the whole kingdom, as a result of the king’s direct involvement.
By the time of the Norman Conquest of 1066 justice was beginning in fact to be a prerogative of the Crown, even if such words were yet to be invented. The king’s concern with justice brought not only crime but also disputes between subjects within the purview of his own court, his council of wise men or witan. Since at least the time of Alfred, kings had undertaken the responsibility of looking into disputes, and the coronation oath made clear the royal duty of ensuring equitable judgments. In fact, so many were the complaints reaching King Cnut in the 1020s that he found it necessary to confine recourse to his court to those who had already sought a remedy in the hundred. Failure of justice elsewhere provided the basis for a nascent royal jurisdiction over civil causes, while the king’s position as a feudal lord gave him the responsibility to do justice in relation to landholding. If all judicature was thus in one way or another associated with the king, it was a simple progression to regard it as somehow deriving from the king or as being exercised on his behalf.
Another significant innovation in the Anglo-Saxon period was the employment of writing in the business of government, though the full significance of it lay in the future. It has already been mentioned that the Anglo-Saxon kings liked to make show of their royal authority by issuing codes, either clarifying points of law or containing general directions to reeves and lords. Some of their contents, especially in Alfred’s code or ‘doom-book’, look like determinations in real cases. At the highest level, adjudication and legislation were not yet clearly distinguishable. The later Anglo-Saxon kings were also using ad hoc written instruments, occasionally under impressive seals, to confer jurisdiction on individual lords, religious houses, or urban communities, or to confirm their existing privileges in permanent form: charters granting the profits of justice (sake and soke) or of markets (toll and team), more specific criminal jurisdiction, or borough status, and writs referring disputes or issuing commands to assemblies of the shire. As yet there was no body of uniform law, as distinct from the customs or folk-right which varied from place to place, and the law which directly concerned the king. There was no unified English legal system. But the seeds of the common law which began to flower in the twelfth century had been sown.
The Source:
John Baker, An Introduction to English Legal History, 5th Edition, Oxford University Press 2019
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