The Development of English Common Law

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Part 1: 0 AD to 1200 AD 

The English law system is internationally renowned and has been used as the basis for many countries around the world, including America and many of the Commonwealth countries such as Australia and Canada. England as a country has been invaded five times by the Romans, the Germanic Tribes, the Vikings, The Normans and the Dutch in the Glorious Revolution of 1688. Each of these regimes had their own influence on the country – this is why the English language is such a melting pot which includes cognates from languages across Europe and why even today England has an ethnically diverse population. But what effect did four invasions in a thousand year period, and another one just over five hundred years later, have on the law? 

Early England 

The Breton people traditionally lived in tribes, owning areas of land which a chieftain presided over and allowed his clansmen to farm and live on. This meant there was no centralised law across the country, instead each individual tribe had their own rules and codes that they followed and therefore issued their own unique punishments to those that broke them. These changed regularly at the chieftain’s behest and when he died, his successor would have his own ideas. The Romans made an attempt to civilise these tribes and institute Roman Civil Law. However, when they left in 410 AD, the country devolved back into chaos. As a result, the law that they hoped to establish was lost and legal precedents were set on the basis of a chieftain’s judgment. The Anglo Saxons invaded forty years later, and they brought in an idea which today is seen as essential to modern criminal law – juries. The Anglo Saxons were Germanic tribes from the north of Germany who believed a man could be acquitted of a crime, if enough people came forward and protested his innocence. While this is slightly different to the juries today, it is thought of as the origin of the concept. And later, one of the last Anglo Saxons kings, Ethelred the Unready, issued a legal code in Wantage stating that the twelve leading thegns (a type of noble) of an area must agree to investigate crimes without bias. The difference between this and modern juries is that they had to collect the evidence and investigate the crime for themselves. The Great Heathen Army (a Viking Army) invaded England in 865 AD and occupied a large area of Northern England called the Danelaw, in which they implemented the Scandanavian law system. This system involved laws and punishments which were chosen by consensus and settled by negotiation or compromise, thus resulting in established precedents – an early form of common law. The Vikings also has their own system of juries – the principal officers of law were twelve hereditary ‘law men’, and they too had committees of free men in court, in similar fashion to the Anglo Saxon system.

Norman England 

Medieval English law in the time of Magna Carta - HistoryExtra
Medieval English law (Source: HistoryExtra)

When William the Conqueror invaded in 1066, an effort was made to centralise the law system of the country, and it is the Normans that are most often credited with the creation of the common law system in England. The idea was to create a system of universal laws which was ‘common’ across all the King’s courts. This was just part of a movement towards a central bureaucracy which included the Doomsday Book. However, this did not mean that the laws were applied to everyone equally, as Frenchmen who came over with William, were subject to a different set of laws than the native English, but they were universal in the sense that wherever you went in England you would be tried through a ‘common’ legal system. While William I was the first Norman king, it was his great grandson, Henry II, that had the biggest impact in shaping the law we have today. Henry II began the tradition of sending out his own judges and justices of the peace to local areas in order to maintain the King’s common law. They gave decisions on cases on an ad hoc basis, and then returned to London to share their judgements with other judges and record them to create a precedent. These judges were therefore responsible for adapting the law by creating a system of writs based on precedence and logic to suit daily use. He took local traditions and incorporated them into the national traditions, as well as eliminating local discrepancies to create a truly common law with internal consistency. The stare decisis is a doctrine implemented later on that stated a judge must follow the precedent of the previous judges, which over time meant the law became homogenised. As well as taking a big step towards establishing common law, Henry II also had an influence in the jury system. He set up a system to decide land disputes that involved 12 free men deciding the outcome of the dispute. However, as before, they investigated the case for themselves rather than having a case presented to them. He also created the Grand Assize, thus incorporating the Grand Jury. The Grand Assize was a way in which tenants could petition the King’s courts rather than the feudal courts on matters of land dispute. The Grand Jury were essentially investigators that found crimes and reported them to one of the King’s judges, for them to preside over.  

An illustration from an 11th-century manuscript depicting a king and his minister doing justice, c1050. (Photo by Hulton Archive/Getty Images)
(Source: HistoryExtra)

As regimes came and fell, England had its law system changed and adapted. Each one modified the system that their predecessor had left and centralised it – this focus on centralising could be in part due to the fact that an invading regime struggles to gain favour with the people, and so must find a way to control them. The law is a critical instrument in achieving that. Therefore, it is clear to see that the development of English common law is interwoven with the history and development of the country itself. An even bigger step was made in 1215 under Henry II’s son, King John, who ratified the Magna Carta on June the 15th, which essentially revolutionised the law and the role of the monarch. The full effect of this historic document will be addressed in Part 2. 


References

  1. Langbein, John H.; Lerner, Renée Lettow; Smith, Bruce P. (2009). History of the Common Law: The Development of Anglo-American Legal Institutions.
  2. George Macaulay Trevelyan. (1958) A Shortened History of England.
  3. http://www.hurstwic.org/history/articles/society/text/laws.htm
  4. http://nuweb2.northumbria.ac.uk/bedemo/sources_of_english_law/page_05.htm
  5. https://www.britannica.com/topic/common-law

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