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2
accepts the commonly held conclusion that the concept of "common law" is
organic, dynamic, and always changing, why did that body of law cease
developing for nearly three centuries?
Exploring this question forms the core of this book. Undoubtedly, the
evolution of English law from its Anglo-Saxon and Norman roots into a
"common" body of law is one of the most important developments in global
legal history. This work reviews those origins and early developments through
both formal and informal institutions and structures. Most notably, it is posited
that the collective contributions of Henry II, Magna Carta and Edward I, coupled
with the rise of Parliament, resulted in a legal construct that persisted largely
unchanged for three centuries. What was it about these developments that
succeeded when the path forward was all but certain? With so many possible
outcomes, it was often sheer force of will that kept English legal traditions
independent pressures from the continent.
Anglo-Saxon Legal Traditions
Today, it seems almost impossible that there could be a pre-history in
respect to the common law. After all, contemporary English law owes much to
its antecedent. In addition, thanks to 300 years of British colonial expansion,
common law jurisdictions are found throughout the world in regions as diverse
as Australia, the Indian subcontinent and Africa. However, if Britain had not
section dealing with the court's work between 1400 and 1600. Baker's Introduction to English
Legal History
is just one illustration of the relative obscurity of the period 1400-1688 in English
legal development.
3
had such success in spreading their influence through the world, this would
probably not have been the case. There is a prominent competitor in the guise of
"civil law," as the former French province cum state of Louisiana stands as a
prominent example. Civil law derives from classical Roman and Justinian law
and, with Roman influence over Britain dating back to 43 A.D., could easily
have served as the foundation of English law. What, then, was unique about
English legal tradition in the first millennium A.D. that resisted this trend?
Roman law was certainly enforced in Roman Britain, if mostly upon
citizens of the Empire rather than the local inhabitants. There were reports of
Roman courts operating as far north as York as early as 85 A.D., but it does not
appear that it had much of an effect upon local customs after the Roman exit in
the fifth century.
2
With so many tribes, each with varying customs, it is hardly
surprising that they failed to coalesce during this period. Further, written laws
simply did not exist amongst the early Britons, and few oral legal traditions
were committed to recording during this period. It would not be until the rise
of the Anglo-Saxons during the seventh century that, with the innovation of
written law, historians can more accurately trace the development of English
law.
3
The first example of uniquely English law committed to a writing was
2
John H. Baker, An Introduction to English Legal History, 4th ed. (Oxford, U.K.: Oxford University
Press, 2007), 2.
3
Baker, Introduction to English Legal History, 2.
4
promulgated by King Aethelberht I of Kent and was thought to be a reaction to
Roman influence.
4
It would take a common enemy to unite the various Anglo-Saxon tribes
into a single entity: the Danes. In the ninth century, King Alfred of Wessex
began the process of unifying the various Anglo-Saxon kingdoms into what
would eventually become England. In the process, he consulted the various
legal traditions of the disparate tribes to attempt a consolidation of laws into a
single written code. These laws, however, only dealt with a select few situations
and stopped well short of what we would consider a uniform system of laws.
5
Justice was still a very local and informal process, but some glimmers of
organization emerge during the Anglo-Saxon period. During the eighth
century, Aethelbert I's Kentish subjects met in "moots" or "folk-assemblies" to
discuss local issues and to serve a communal justice function. First, there would
be an attempt to persuade the feuding parties to reconcile their differences.
Failing that, the next step required the introduction of proof to determine the
outcome of the case. The prima facie case was presented first, laying out the
elements of the charge and explaining why judgment should be had for the
wronged party. The defendant could then attempt to refute the prosecution's
4
The earliest known surviving recording of the Law of Aethelbert is included in the Textus de
Ecclesia Roffensi per Ernulphum episcopum
(The Book of the Church of Rochester through Bishop
Ernulf), written ca. 1124. In it, the laws are directly attributed to King Aethelbert "'Dis syndon
da domas de aethelbirht cyning asette on agustinus daege," or "these are the dooms [laws] that
King Aethelbert set in Augustine's days." Some historians believe that it was meant to establish
the kingdom as a civilized competitor to Rome. For further discussion of this, see Patrick
Wormald, The First Code of English Law (Canterbury, U.K.: Canterbury Commemoration Society,
2005).
5
Baker, Introduction to English Legal History, 3.
5
charge by providing "proof by oath," where the defendant swore to whomever
necessary that he was not guilty. This was typically not sufficient by itself, and
would have to be backed up by witnesses or, failing this, an ordeal. The two
typical forms of ordeal in early England were by fire or water. In "ordeal by
fire," the defendant's hands were secured around a fire-heated iron bar for
several days. If the burn festered, the defendant was guilty. In contrast, "ordeal
by water" required that the defendant be tied up and cast into a pond. If he
floated he was guilty and if he sank he was innocent.
6
Obviously, these early forms of proof were often crude, but the
establishment of procedure is an important innovation. Still, without some
overriding national government unifying the various tribal villages, a uniform
legal system was impossible. By the tenth century, the kingdom of England had
been firmly established and began to create a central bureaucracy. The kingdom
itself was split into "shires," or counties, each of which had an assembly which
met twice annually to discuss important issues. Within each shire, smaller
administrative units called "hundreds," and within them even smaller
organizations called "tithings," were tasked with keeping order and levying
taxes. It appears that the moots of the shires and hundreds each enjoyed parallel
jurisdiction; neither entity answered to the other. Where the hundreds served
an administrative role for the rural areas, each town or borough had its own
administrative assembly called a "burghmoot," "portmanmoot" or "husting."
6
Baker, Introduction to English Legal History, 4-5.
6
Finally, at the bottom of this hierarchical maze is the village moot, which was
roughly parallel to the tithing.
7
Law still did not derive primarily from a central source in the kingdom
of England in the tenth century. Instead, references were made to a communal
law called folcriht (or folk-right). This law was generally understood to be left to
the members of each moot to interpret appropriately. The rise of feudal
relationships resulted in the establishment of yet more parallel courts. Each
feudal lord was understood to have his own court that presided over his
fiefdom. This right derived from the Anglo-Saxon concept of "sake and soke",
specifically the right that a lord had jurisdiction to decide various offenses over
his fiefs.
8
Each lord's manor had its "hall-moot" where local laws were
established, contract and tort cases were heard, and minor crimes were dealt
with.
9
Emerging from this diverse backdrop are the early beginnings of
bureaucratic centralization. Edward the Elder and Athelstan both required the
use of folk-right and the king's written laws in local assemblies. In the mid-
tenth century, the charge of "crimes against the king's peace" became more
prevalent throughout the kingdom. The king was expected to hear cases in his
own court, much as the king's lords were expected to do. By 1020, King Cnut
required that all cases coming before him would have to first be submitted to
7
Baker, Introduction to English Legal History, 7-8.
8
John Hudson, The Formation of the English Common Law: Law and Society in England from the
Norman Conquest to Magna Carta
(Essex, U.K.: Addison Wesley Longman, Ltd., 1996), 43-5.
9
Baker, Introduction to English Legal History, 8-9.
7
the hundreds for determination. Folk-right still differed throughout the realm,
but the King's law was gaining traction. This emerging structure, coupled with
the development of written reporting of cases and laws, marked the early seeds
that would eventually germinate into "common law."
10
Anglo-Saxon kings annually called an assembly of the "best and
brightest" aristocrats called a "witan" or "witenagemot." Though it would be a
stretch to suggest that these gatherings bore any resemblance to later
parliaments, the importance of Parliament starting in the thirteenth-century
requires some discussion of similar predecessor institutions. Though the
witan's duties were never specifically defined, in practice they included a
variety of tasks such as levying taxes, engaging in diplomacy and providing for
the defense of the realm. Legally, it also served the role of "high court, not of
appeals, but of first instance."
11
Decidedly there existed a number of legal traditions and institutions
during the Anglo-Saxon period. It could even be argued that the state of law in
England at that time surpassed that on much of the continent in terms of
complexity and efficacy. Nevertheless, strong legal traditions cannot always
sway the ambition of foreign rulers intent on the expansion of their realms. In
the 1060s, as King Edward (the Confessor) was in declining health, William of
Normandy saw his chance to accede to the English throne. Related by marriage
to Edward the Confessor, William began to assert his claims. Despite this,
10
Baker, Introduction to English Legal History, 10.
11
Goldwin Smith, A Constitutional and Legal History of England (New York: Charles Scribner's
Sons, 1955), 14.
8
Edward named Harold of Wessex as successor on his deathbed in January 1066.
In response, William assembled an invasion force and sailed for England that
September. The ensuing Battle of Hastings resulted in the routing of Harold's
forces, Harold's death, and eventually the submission of the Anglo-Saxon earls
to William's dominion.
12
The Norman Conquest
The conquest of England by Norman invaders from the European
continent marked a drastic shift in many respects. Not least amongst these was
the effect upon extant Anglo-Saxon legal structures. Recall that when the
Romans conquered England a millennium prior, Roman law had little effect on
the local populace. Only citizens were subjected to Roman courts, and the vast
majority of the inhabitants were not significantly affected by this change. In
stark contrast, the Normans concerned themselves with assimilating the English
into a single and uniquely Anglo-Norman power structure. Intrinsic to this goal
was the incorporation of Norman and Anglo-Saxon legal concepts.
The necessity of pacifying the local population was first and foremost in
William's mind after 1066. After all, King William I of England was also Duke
of Normandy. As such, it was expected that William would be required to
spend much of his time away from England. However, his first attempt to
return to Normandy in March 1067 ended in his abrupt departure for England a
12
Bryce Lyon, A Constitutional and Legal History of Medieval England, 2nd ed. (New York: W.W.
Norton & Co., 1980), 33-35.
9
mere nine months later. In the wake of such dissent, a strong centralized
government was needed to ensure order. William accomplished this partly by
ordering the construction of a series of fortresses for the protection and
propagation of Norman power.
13
He also introduced religious, political and
legal structures and reinforced others to further ensure the subjection of the
English people to his will.
First and foremost amongst these was the King's Court. As discussed
above, this concept was far from new as inhabitants from both sides of the
English Channel started appearing before their king for redress of certain
grievances well before 1066. What was more unique about Norman royal courts
in England was their ability to project power over English inhabitants. A
Norman king would be obliged to travel between Normandy and England on a
fairly regular basis. Another member of the king's family or a trusted official
would be left to preside in the king's stead. This important duty often fell upon
a high-ranking exchequer official, who was sometimes referred to as a "justic[e]
of all England" to reflect this prominence.
14
Several types of local officials exercised justice in each locality subject to
the king's royal prerogative. First, there were justices resident in one or more
shires who acted as the king's deputy in certain judicial matters. Each justice's
jurisdiction was far from uniform as not every shire had a justice and not every
justice presided over just one shire. In this same category of judgeships, minor
13
Lyon, A Constitutional and Legal History of Medieval England, 117.
14
Hudson, The Formation of the English Common Law, 27, 30.
10
local officials were given the responsibility of attending to "the king's pleas."
These "king's serjeants," as they came to be known, were tasked with a
somewhat amorphous list of duties consisting primarily of acting as coroner in
suspicious death investigations and presiding over the conduct of ordeals.
15
Apart from these resident justices, the king often appointed royal justices who
were required to preside over cases in a number of shires. These itinerant
judges would travel regularly throughout their circuit and dispense justice on a
wide variety of subjects.
16
Though not every shire had a royal justice, every shire had their own
court. Indeed, both shire and hundred courts largely survived the Norman
Conquest, though some changes to their organization and jurisdictional scope
were effected. In the shires, the first such alteration was to the hearing schedule.
Before 1066 shire courts were held twice annually, but after Conquest this
schedule shifted to once every four weeks. This appears to have occurred
largely due to increased numbers of pleas originating in this court. The shire's
sheriff presided over the monthly court, but the king's suitors delivered
judgment. These sessions were typically called seven days in advance, but pleas
were only heard on one day. Much like the itinerant royal justices, shire courts
had wide jurisdiction over many types of cases. Indeed, the vast majority of
pleas could be heard in any shire court, with the notable exception being those
where the king was a party. In those select situations a royal official was
15
For a further discussion of proof by ordeals, see supra, pp. 3-4.
16
Hudson, The Formation of the English Common Law, 31-33.
11
required to be present, thus requiring the case to be moved to a court where a
resident royal justice presided.
17
Thus, the shire courts (later called "county
courts") eventually became the primary venues where judges on their eyre
would hold court.
18
This early itinerant court would later be expanded in size
and importance and its significance will be discussed below.
As for the hundreds, legal historian John Hudson estimates that there
were upwards of 628 hundreds in Anglo-Norman England.
19
Each had its own
court, presided over by a sheriff's bailiff and with suitors delivering judgment.
Much like the shire courts, pleas were only entertained for one day. Hundred
courts were held more frequently than those in the shires, but their schedules
accelerated to meet increased demand. What had been a monthly occurrence
pre-Conquest morphed into a bi-monthly affair. The similarities between the
hundred and shire courts did not end there, as they often shared jurisdiction
over the same types of disputes. Land disputes in particular were heard in both
venues, but these rarely resulted in confusion between the courts. Hundred
courts typically only accepted cases that arose within the geographical
boundaries of the specific hundred and, as a result, major cases between large
landowners generally found a venue in the shire courts instead. This resulted in
an artificial hierarchy with the hundred courts finding themselves situated
below the shire courts. It cannot be stressed enough here, however, that there
17
Hudson, The Formation of the English Common Law, 34-37.
18
Lyon, A Constitutional and Legal History of Medieval England, 192.
19
Hudson, The Formation of the English Common Law, 37.
12
does not appear to be any specific intention to relegate the hundred courts to
this status.
20
Toward the end of Anglo-Saxon rule in England, and as touched upon
previously, individual lords began to entertain pleas from their fiefs in hall-
moots. After 1066, these hall-moots persisted as the primary source of
remediation in disputes between a lord's tenants. Further, within a few years of
the Norman Conquest, seventy-nine percent of rural Anglo-Saxon families
found themselves bound to some lord in a feudal arrangement.
21
As more
people became subject to the complexities of feudal law, the lord ceased to play
a direct role in these hall-moots. Instead the lord's reeve, or manager, presided
over the court. In addition to hall-moots, the Normans introduced the concept
of "honorial courts." Disputes between lords and between lords and their
vassals, such as quitclaim actions, could be heard in these venues. In addition,
some hall-moot cases were transferred to honorial courts if it was considered
worthy of the lord's direct attention. As a general matter, the king benefitted
greatly from these seigniorial courts. By vesting limited judicial power in these
minor courts, the king could help ensure the continued loyalty of his subjects in
regions that would otherwise be difficult to administer effectively.
22
Parallel to many of these courts were two other structures: town or
borough courts and church courts. Borough courts gained additional
prominence following the Norman Conquest as more people moved from rural
20
Hudson, The Formation of the English Common Law, 37-40.
21
Smith, A Constitutional and Legal History of England, 51.
22
Hudson, The Formation of the English Common Law, 40-47.
13
areas to towns. Indeed, the burghmoot in London gradually transformed into a
husting that met weekly. As for ecclesiastical courts, William I established the
beginnings of a separate church court structure as early as 1072 when he
commanded, "[l]et him do what is just for God and his bishop not according to
the law of the hundred, but according to the canons and episcopal laws."
23
These church courts were first vested in the authority of each bishop and
additional archdeacon courts were also established, all under the purview of
the Pope's court. Cases dealing with marriage, bastardy, testamentary devise
and clerical offenses could all be brought before the ecclesiastical court. In the
event of a conflict between royal and church courts, the king and his court
would determine the proper venue.
24
This separation of jurisdictions would
certainly cause some considerable consternation in subsequent years, as will be
discussed at length in Chapter 3.
All of these disparate courts and assemblies are of interest, but their
importance beyond their individual localities was minimal. Individual entities
were given power to assist the king in administering his realm, but in Anglo-
Norman England the king's court, or coram rege, was situated above all. The
coram rege
itself was composed of the magnum concilium (great council) and curia
regis
(small council). Successor to the Anglo-Saxon witan, it differed from it
largely due to its more feudal nature. Feudal obligation required lords to attend
23
"Writ of William I concerning Spiritual and Temporal Courts (1072-1076, and probably April
1072)," English Historical Documents, 1042-1189, ed. David C. Douglas and George W.
Greenaway (New York: Oxford University Press, 1953), 604-605.
24
Hudson, The Formation of the English Common Law, 47-50.
14
the magnum concilium as opposed to the more relaxed summonses of the witan.
The magnum concilium was also tasked with providing advice to the king, but
the king was more than able to act without consulting this court.
25
Perhaps
more important to the daily administration of the kingdom was the small
council. This curia regis was more permanent and was composed of the
chancellor, chamberlain, seneschal, butler, constable, justiciar and assorted
clerks from the royal household. This early central administration would
eventually play a more prominent role in the development of an array of new
legal institutions.
26
Though all of these structural innovations were undoubtedly important
to the underlying germination of common law, the law of property began to
develop a life of its own during the period immediately following the Norman
Conquest. Modern property law and its myriad of rights and privileges owes
much to its Anglo-Norman forebears. As mentioned previously, Norman rule
brought with it a vastly increased emphasis on feudalism and feudal tenancies.
Though William the Conqueror had promised his new subjects that local laws
would be preserved, this novel land-intensive practice necessitated the
establishment of a new set of practices. Land tenure in Anglo-Norman England
came in a variety of levels called "estates." Some of these, such as fee simple
and life tenancies, persist today (though not necessarily with the exact
meanings they hold at present). Others have become more obscure or obsolete.
25
Lyon, A Constitutional and Legal History of Medieval England, 142-148.
26
Lyon, A Constitutional and Legal History of Medieval England, 148-151.
15
Nevertheless, a brief analysis of the two most prevalent estates after 1066 is
necessary to understand subsequent transformations in English property law.
The first and most basic estate is the fee simple interest. If one holds real
property in fee simple, the property was held by a lord as a fief and could be
bought or sold without complication. Though a fee simple estate could be
transferred freely, it could not be devised by will as this would violate
traditional principles of primogeniture. The potential for free transfer and
alienation of land, even after the death of the holder, led to the creation of the
fee simple conditional estate. Here, the holder attempted to ensure the land
would stay in his family by placing conditions upon it. The most popular
method to establish a fee simple conditional estate in the Anglo-Norman period
was by selling the land to the holder's son with the condition that it had to be
passed down to the son's heirs. As will be discussed later, these methods of
alienation caused sundry problems that would eventually need to be
addressed.
27
In any event, what emerges most clearly from this formative period is the
increasing interrelatedness of once-disparate Anglo-Saxon courts and newer
Norman innovations. This is evidenced in part by the increased transfer of cases
between each court for various reasons. The kingdom established under
William I would be neglected by William II, resuscitated by Henry I, and nearly
lost by Stephen, but it was Henry I who, in 1108, referred to both the hundred
and shire courts as "my shire courts and hundred courts" (emphasis added).
27
Smith, A Constitutional and Legal History of England, 55-57.
16
This centralization and increased interdependence between the various courts
forms yet one more brick in the foundation of common law.
28
As the Anglo-
Norman period ended, it would be Henry II whose legal reforms invigorated
English law and order. In the words of Professor Goldwin Smith, "[t]here is not
a modern problem of government that his influence does not touch...[t]here is
no court of common law on which the light of his reign has not fallen."
29
28
"Charter of Henry I concerning the Holding of the Courts of Shire and Hundred," English
Historical Documents, 1042-1189
, 433-434.
29
Smith, A Constitutional and Legal History of England, 81.
17
Chapter 2 Legal Reforms under Henry II
Accession of Henry II
Though this does not presume itself a political history, some background
into the formative years of Henry II is merited. The somewhat unusual
circumstances by which he was eventually crowned certainly colored his
outlook upon the law and legal protections.
Before his death in 1135, Henry I made clear his wishes that he should be
succeeded by his daughter Matilda. Cognizant that the succession of a woman
to the throne would be unpopular, Henry compelled promises from the
influential barons of the realm in order to secure a peaceful transition.
Unfortunately for Matilda, these promises did not survive Henry I. Instead, the
barons determined that Henry's nephew, Stephen of Blois, should become the
next king. This determination was cemented by Stephen's suspiciously quick
arrival in England with the stated purpose of being crowned king. Thus
Henry's planned inheritance of the realm by Matilda was ignored and Stephen
became king at her expense.
30
Matilda did not leave the scene quietly. Stephen was a poor
administrator, and by September 1139 Matilda and her half-brother Robert had
returned to England to foment a revolution to restore Matilda to the throne.
Several years of indecisive combat followed between the fledgling forces of
Matilda and the numerically superior but poorly-led soldiers of Stephen. When
30
W.L. Warren, Henry II (London: Eyre Methuen Ltd., 1973), 12-14.
18
in 1141 Stephen was captured and Matilda arrived in London to be crowned
empress, her mistreatment of her own lieutenants resulted in her own flight.
The civil war thus continued unabated and by 1147 it appeared to be a
stalemate. With Matilda discredited and Stephen unpopular, both sides looked
to an alternative arrangement to end the conflict. An agreement called the
Treaty of Winchester succeeded in finding this conclusion in 1153. Under the
terms of the treaty, Stephen would remain king until his death. However,
Stephen's heir would be Matilda's son Henry of Anjou instead of Stephen's
own issue. It appears this recorded plan of succession enjoyed considerably
more success than that which had caused the civil war in the first instance. Only
one year later, Henry of Anjou received news that Stephen was dead.
31
At the
age of twenty-one, Henry was now king of England.
32
The concept of royal justice had greatly deteriorated during Stephen's
reign. One overarching theme that emerges during the medieval period in
England is that strong centralized authority yielded results. William the
Conqueror and Henry I both benefited by these character traits. Stephen's
ineffectual leadership eventually culminated in his dynasty's short-lived tenure.
Now that Henry II had been crowned king, the question remained as to
whether he would count himself amongst the mighty or the timid. It appears
that young Henry rose to the occasion. Though undoubtedly from regal stock,
31
The period from the death of Henry I to the coronation of Henry II could almost be
considered an interregnum due to Stephen's disastrous administration. For further information
on this fascinating period, see Jim Bradbury, Stephen and Matilda: The Civil War of 1139-53
(Gloucester, U.K.: Sutton Publishing Ltd., 1996).
32
Warren, Henry II, 15-53.
19
he cared little for the trappings of kingship. He was restless, especially in his
earlier years, but contemporaries are decided that his drive was unstoppable
and the force of his will insurmountable.
33
Professor Warren attributes Henry's
desire to reform the laws of his kingdom in part to his "decisive" nature, but
also points to Henry's willingness to listen to argument and to resolve
somewhat "awkward" problems.
34
Whatever the cause, the reign of Henry II
would certainly have a lasting impact on law in England.
Beyond his persona, it seems that Henry II benefited primarily from two
specific events: the failure of Henry I to ensure his own inheritance and the
success in ensuring the transfer of the realm to Henry II by the Treaty of
Winchester. In many ways, it seems inevitable that a king that gained so much
by the operation of inheritance would prioritize the reform of this field,
amongst others, in the years to come.
Royal Law and Order
The administration of law and order in England by 1154 had changed
little over the course of Stephen's reign. As discussed above, little in the way of
centralization and the uniform practice of law had yet been innovated. Though
the foundations of the common law were present, no concrete steps toward that
33
Examples of this particular personality trait abound in the literature of the time. For example,
consider Bishop Hilary of Chichester, who was brought before Henry to answer for the actions
of his agents and to discover "the truth of the matter" ("ut rei veritas est..."). Chronicon
Monasterii de Bello
(London: S. & J. Bentley, Wilson and Fley, 1846), 101. For another example,
see also Thomas Walsingham, Gesta Abbatum Monasterii Sancti Albani, ed. Henry Thomas Riley,
vol. 1 (London: Longmans, Green, Reader and Dyer, 1867), 137-154.
34
Warren, Henry II, 360.
20
goal had yet been taken. For a variety of reasons, Henry II would be the first
king to prioritize the reform of law across his realm. In what Professor Warren
referred to as "a manner that is typical of Henry II," Henry did not abolish
existing legal structures and practices.
35
Instead, he set up alternatives to the
existing paradigm and made them attractive enough to litigants to ensure their
adoption as the new standard. This concept was extended to a variety of
different areas of law, which will be discussed below. It is perhaps important to
note, however, that though the various reforms to the law had a significant
impact, Henry's motivations for reform were often calculated to ensure his
continued hegemony. As a result, his "reforms" could be considered more
reactionary, rather than revolutionary, in nature.
These innovations did not occur overnight. Indeed, the administration of
royal justice did not change much during the first decade of Henry's reign. The
same ad hoc application of law continued, with the royal courts and those of the
hundreds and shires operating independently of each other. Most of the
reforms undertaken by Henry II are found in the latter years of his reign and
memorialized in contemporary legal treatises such as the Tractatus de Legibus et
Consuetudinibus Angliae
(Treatise on the Laws and Customs of England),
reputedly authored by Ranulf de Glanvill. From Glanvill, we can divine much
about the practical elements of law under Henry II and can truly appreciate the
significance of his reforms.
35
Warren, Henry II, 317.
21
First, the king's court not only persisted from its earlier iterations but
enlarged as well. One notable exception is the creation of the capitalis curia, or
chief court, which was an extension of the king's court that did not travel with
the king. Instead, the capitalis curia remained at Westminster and supported the
itinerant royal judges and the travelling king's court itself. This support role is
key to note, as the capitalis curia did not function as a supreme court of the
kingdom. Instead, it served as the center of this early judicial bureaucracy.
Nevertheless, it remained in regular session and assisted in centralizing the
administration of law. In many ways, this antecedent structure was essential to
the creation of a common law.
36
Just as importantly, this served as the
predecessor to what would become the Court of Common Pleas in subsequent
centuries, which would serve as a court to hear suits between private citizens.
37
Henry's use of "assizes," or binding decrees issued from his meetings
with barons, to establish legal procedures marked a drastic change in the
projection of royal authority over the judiciary. Two assizes in particular, the
Assize of Clarendon (1166) and the Assize of Northampton (1176), would define
processes that would resonate through the centuries. The Assize of Clarendon
was notable for its establishment of a grand jury system for investigating crimes
throughout the kingdom. The subsequent Assize of Northampton went one
step further in establishing "juries of presentment" that would decide which
cases should be tried in a given jurisdiction in the first instance. Together, these
36
Warren, Henry II, 330.
37
Smith, A Constitutional and Legal History of England, 163.
22
two assizes in particular provided another piece of the framework that would
allow the common law to flourish.
Within the broad field of civil law (not to be confused with the broader
civil law system, which derived from the Roman model and is discussed
above), Henry II devoted most of his effort to developing procedures designed
to protect property interests. From a procedural standpoint, none of his
contributions could have been more important than the development of the
"returnable writ." Writs had been used in England since William the Conqueror
"as a way of initiating litigation or authorizing particular commissioners to hear
litigation in the king's name."
38
However, Henry utilized the writ to help
standardize certain practices and make the administration of law more efficient.
Essential to the success of this new practice was the royal authority granted
unto it. In respect to property specifically, it was said at the time that,
"[a]ccording to the custom of the realm, no-one is bound to answer concerning
any free tenement of his in the court of his lord, unless there is a writ from the
lord king or his chief justice."
39
This resulted in vastly increased numbers of
cases overwhelming the king's chancery. This development, in turn, required a
38
Paul Brand, "Henry II and the Creation of the English Common Law," in Henry II: New
Interpretations
, eds. Christopher Harper-Bill and Nicholas Vincent (Suffolk, U.K.: The Boydell
Press, 2007), 217.
39
"Preterea sciendum quod secondum consuetudinem regni nemo tenetur respondere in curia
domini sui de aliquot libero tenemento suo sine precepto domini regis uel eius iusticie
capitalis,"Ranulf de Glanville, Tractatus de Legibus et Consuetudinibus regni Angliae qui Glanvilla
Vocatur
, ed. G.D.G. Hall (London: Thomas Nelson and Sons, Ltd., 1965), 148.
23
new type of writ. These new writs de cursu (or "of course") were composed of
standard language for each topic that they were meant to address.
40
These new writs were first tested in the context of that ancient property
law concept of seisin. In a property law system still rooted in the belief that all
free men held any land subject to the dominant rights of the king, a "free-
holder" of land was said to hold his property "in seisin." If another man took
those rights away by either proclaiming his own rights to the land or otherwise
depriving the original occupant of his enjoyment of the parcel in question, the
original occupant was "disseised" of his rights (by act of disseisin). Custom
dictated that the man in possession of the land held that land unless his rights
were proven otherwise deficient by another. This would thus require the
disseised party to petition a court to regain his rights to the land. These
concepts of seisin and disseisin, and what constituted each, were problems of
the utmost importance to twelfth-century courts.
41
Intrinsic to the understanding of the concept of seisin is the conclusion
that disseisin was not always wrong in the eyes of twelfth-century England. For
example, in a feudal relationship between tenant and lord, a lord was fully
within his rights to disseise his tenant in the event that the tenant failed to pay
his lord for those rights. Further, and always a complication to any of the
judicial reforms undertaken in this period, contemporaries viewed resorting to
the courts as a secondary solution to be pursued if "self-help" did not succeed
40
Warren, Henry II, 332-334.
41
Ibid.
24
in the first instance. Thus, if a hypothetical individual stole cattle from another,
the wronged person could forcibly take occupancy of the robber's lands. This
would have been viewed as "just disseisin" and not recoverable at law.
Determining whether the disseisin was just, in addition to whether disseisin
took place at all, created sundry issues for early English courts.
Henry II took the first tentative steps at resolving the ambiguity at the
center of this concept. Sometime between 1156 and 1160, he eliminated the use
of self-help in justly disseising freeholders. Thus, disseisin could only properly
occur if it resulted from the judgment of a court. A few years later, around 1166,
Henry issued an assize that made disseisin without judgment of the court a
"breach of the king's peace" and thus punishable as a "plea of the Crown."
42
Finally, in or soon after 1176 a new process was introduced called the "assize of
novel disseisin." This was one of the first truly standardized writs and deserves
special attention. First, the text of the writ itself:
The king to the sheriff, greeting. N. has complained to me that R.
unjustly and without a judgment has disseised him of his free
tenement in such-and-such a vill since my last voyage to
Normandy. Therefore, I command you that, if N. gives you
security for prosecuting his claim, you are to see that the chattels
which were taken from the tenement are restored to it, and that
the tenement and the chattels remain in peace until the Sunday
after Easter. And meanwhile you are to see that the tenement is
viewed by twelve free and lawful men of the neighborhood, and
their names endorsed on this writ. And summon them by good
summoners to be before me or my justices on the Sunday after
Easter, ready to make the recognition. And summon R., or his
bailiff if he himself cannot be found, on the security of gage and
42
The original text of the assize has been lost, but Professor Warren inferred its existence and
substance from references in the pipe rolls for penalties "imposed for disseisin against the
king's assize." See footnote 1, Warren, Henry II, 337.
25
reliable sureties to be there then to hear the recognition. And have
there the summoners, and this writ and the names of the sureties.
Witness, etc.
43
Each element of this new writ appeared to have been considered at length.
Anecdotally, the near-contemporary legal commentator Bracton spoke of the
tradition that Henry II and his advisors spent many sleepless nights working on
the writ of novel disseisin.
44
The result of their endeavors is worthy of some discussion and analysis.
First, note the jury of "twelve free and lawful men" that is required to be called.
The use of twelve jurors mirrored the language found in the Assize of
Clarendon which pertained to criminal cases. Serfs were not permitted to be
jurors in cases of novel disseisin as they were more likely to be swayed toward
a certain verdict by their respective lords. Thus the jurors were not only
required to be lawful (a requirement met by having a good reputation for
honesty in the community) but free. The "summoners" were required to be
present when the court heard the case so that the royal justices could ensure
that procedural requirements were followed. The writ even had to be endorsed
by all of the jurors and submitted to the court, thus giving the justices all of the
information they needed to weigh the equities in the case. Finally, and perhaps
most importantly, the jury was required only to determine whether the plaintiff
43
Glanvill, Glanvill, 167-168.
44
"Cum igitur disseisitus ita negligens fuerit in hac parte quod nolit vel non possit disseisitorem
suum reicere, de beneficio principis succurritur ei per recognitionem assisæ novæ disseisinæ,
multis vigiliis excogitatam et inventam
..." (emphasis added). In describing the operation of
submitting a writ of novel disseisin, Henry de Bracton noted that the writ was "excogitated and
contrived after many night watches." Henry de Bracton, Bracton de Legibus et Consuetudinibus
Angliae
, vol. 3, trans. Samuel E. Thorne (Cambridge, MA: Harvard University Press, 1968), 25.
26
had been disseised improperly and without judgment. Thus, the court was
acting as the fact-finder and the juries determined the factual record of the case.
This new role for the jury was revolutionary for its time and would serve as a
template for court practice through the present day.
45
Though modernizing trial juries was no small feat, the creation of a
standing list of royal judges, collectively termed the "general eyre", was even
more essential. Just as a modern courtroom would be left in chaos without a
professional magistrate to guide the proceedings, the court of Henry II would
have been similarly flummoxed in the same scenario. Though judges certainly
"went out on eyre" before Henry II became sovereign, it appears clear that the
innovation of the general eyre derives from his reign.
46
Henry II's general eyre
differed from its early predecessors in its determination to visit all counties of
the realm, its requirement that this circuit be completed within a limited
amount of time, its explicit vesting of both civil and criminal jurisdiction in the
judge, and its formal extension of consistent royal justice throughout England.
47
This formalized structure was an essential foundation to the writ practice that
issued from it. Without ensuring consistent legal authority in all parts of the
kingdom, Henry's efforts to make the courts more efficient would have been in
vain.
45
Warren, Henry II, 340.
46
Brand, "Henry II and the Creation of the English Common Law," 216; Paul Brand, The Making
of the Common Law
(London: The Hambledon Press, 1992), 79-86; cf. William T. Reedy, Jr., "The
Origins of the General Eyre in the Reign of Henry I," Speculum 41 (1966): 688-724.
47
Brand, "Henry II and the Creation of the English Common Law", 216.
27
In any event, the assize of novel disseisin served as the prototype for a
number of successor processes during the reign of Henry II, collectively called
"recognitions" or "petty assizes." Probably the most important and utilized
recognition developed after the assize of novel disseisin was that of "mort
d'ancestor." This concept concerned itself with the transfer of seisin after the
death of the freeholder from the deceased to their true heir. Henry's interest in
this field of law seems only logical in light of the facts surrounding his
accession to the throne. In a traditional action for mort d'ancestor, an individual
who thought that they were entitled to some portion of a decedent's estate
sought for the court to intervene to permit their recovery (presumably at the
expense of some other beneficiary). In the first official eyre of 1176, Henry's
instructions to his itinerant justices quoted the fourth clause of the Assize of
Northampton: "If any freeholder has died, let his heirs remain possessed of
such seisin as their father had of his fief on the day of his death; and let them
have his chattels from which they may execute the dead man's will."
48
In furtherance of the desire to protect the testamentary intent of
decedents, a writ of mort d'ancestor was developed. Though it certainly owes
its inspiration to the earlier writ of novel disseisin, there are significant
differences between them. These distinctions mark yet another progression
toward a more refined body of law and procedure. For example, early
practitioners realized that an action in mort d'ancestor was more likely to
deviate from the standard than an action to determine novel disseisin. As a
48
Warren, Henry II, 342-346.
28
result, the defendant in these cases was permitted to record objections by way
of showing cause why the proceeding should not continue. If the defendant
could establish a reason why the court should not proceed with the case, the
proceedings would close. This "show cause" procedure continues almost
entirely intact in chancery proceedings in the present day.
49
Yet another development during this period was the creation of a formal
"final concord" or final judgment. Though judgments were generally the goal of
courts established well before Henry II's reign, the formalization of the process
was unprecedented. Once settlement or judgment had been reached, a two-part
"chirograph" was created. The agreement was printed twice on a single sheet of
parchment and each part was separated by an irregular cut that would allow
only the two original separate pieces to fit together to prove their authenticity.
This final concord would then serve as the final judgment in the matter. The
great leaps forward reflected in the legal history of the period each time that a
determination of fact or law was reduced to a writing should not be overlooked.
Indeed, this is an overarching theme in the onward march toward the
formalization of legal processes.
50
As complex as determining disseisin was, determining land ownership
in its own right was just as problematic. Modern requirements of titles and
deeds and their recording were nonexistent in the subject period. The
occasional charter, typically granted by the king, could be proffered but held
49
Warren, Henry II, 346.
50
Warren, Henry II, 347-348.
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