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chapter 12: The Origins of English Law - John Maxcy Zane, The Story of the Law 
The Story of Law, 2nd ed., Introduction by James M. Beck. New Foreword, Annotations, and Bibliographies by Charles J. Reid, Jr. (Indianapolis: Liberty Fund 1998).
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The Origins of English Law
The Roman Digest in the words of Gaius, in his treatise on the Law of the Twelve Tables, has told us how important are the origins of any system of law. But the beginnings of English law have become entangled in the historical controversy concerning the nature of England’s debt to the Anglo-Saxon element of her population. Many English historians have mistakenly attributed everything of importance in English institutions to that element. Their position has determined that of the legal historians. The foundation of this mistaken structure has been a crass misrepresentation of the Anglo-Saxon conquest of England. That conquest covered a long period. It began in Roman times with depredations along the coast of Britain. There was a special officer in the Roman administration called the Count of the Saxon shore, whose duty it was to ward off the thieving pirates from across the sea. Infiltration of barbarians occurred in Britain just as it took place in Gaul. About 450 A. D. the irruptions took on a much more formidable character, for the Roman legions had been withdrawn in 407 A. D. and quarreling had arisen among the British tribes. For almost two hundred years the aggressions from Germany continued until the conquest was complete, except for Wales and the northernmost part of England. The tribes of Angles, Saxons, and Jutes carved out their own territory and divided the conquered inhabitants among the tribes as they were located.
Historians like Freeman, Froude, and Stubbs, in order to maintain the thesis that everything which we call English is due to the Anglo-Saxons, have represented the invading Anglo-Saxon as far more savage, remorseless, and brutal than he actually was.1 It was an article of the true faith with such historians that the invaders, with hideous and implacable cruelty, swept the face of England bare of all former inhabitants and thoroughly devastated the whole country. They have tried to ennoble the invaders by painting in the most lurid colors their innate ferocity. That the original Celtic conquest of either Gaul or Britain was not of this order was too plain for words, although it is true that the Celts imposed their language and tribal institutions upon the original inhabitants. That the later conquests of Gaul by the Franks, of Spain by the Visigoths, of Italy by the Lombards, were not of this savage description was admitted by all writers.
Common sense should have taught that in the nature of things conquests of settled and cultivated lands were never of this appalling description. The barbarians invaded settled lands because the inhabitants of them were richer and had more visible wealth. This course was due to the primitive instinct of one tribe to steal from and rob another tribe. But the robbers may be credited with sense enough to desire to retain something of value out of the robbery. Especially they desire to keep the unpaid labor of the existing population by reducing it to serfdom or slavery. No barbarian works if he can help it, and the best way for him to avoid work was to enslave some other persons to work for him. No doubt the fine Roman villas with the comforts of cultivated Roman life were destroyed or fell at once into ruin in Britain, for such conveniences and advantages were as much wasted on the invaders as would be porcelain bathtubs set up in tenements designed for Croatian immigrants. The cultivated lands worked by serfs, the invaders could utilize, although many of the male Britons were killed in the struggle.
Since this Anglo-Saxon myth was invented by Freeman and followed by Green and other writers, much work has been done in the archaeology and ethnology of England and of the English race. It is now reasonably plain that the original inhabitants of England were of that Iberian or Ligurian or Alpine race which, wherever it came from, originally is found in Italy, Spain, Gaul, and southern Germany some time after the close of the last Ice Age. This original population of Britain cultivated the soil and followed the calling of pastoral men as well. Like all the first agriculturists, they lived in village communities. They represented a stage of considerable culture, as their pottery alone would prove. Their fine cultivation of the soil, their superior methods of mining and their fishing for pearls in the rivers of Great Britain, cannot be disputed. They were certainly much more advanced in civilization than the Celts, when the latter overran western Europe. Temporarily submerged by the Celts, this Iberian race assimilated the Celtic invaders, and when Caesar landed in Britain he found a race of cultivators of the soil with droves of swine and cattle, using the horse and the horse-drawn vehicle. Had Britain been as worthless as Germany was with its morasses and forest and lack of agriculture, Caesar and his successors would have left it alone.
During the long Roman occupation this mixed population became much Romanized. Christianity penetrated among them and passed into Ireland and northern Britain. After the Romans withdrew their legions and the Anglo-Saxon invasions in great force began, it is not unlikely that some Britons passed into Ireland and gave to the Irish laws some of those curious touches of Roman law which seem so much out of place in the Brehon law and which have discredited it. It is certainly true that in Ireland was found an advanced Latin Christian culture, when England, France, and Spain were in the lowest depths of the Dark Ages. Many of these Britons crossed the Channel into Brittany in France, and made that province. But a large part of the existing population stayed upon the conquered land as serfs during the Anglo-Saxon invasions, and as all men do in the presence of a dominating lower culture, they rapidly deteriorated.
This original population after a time assimilated the Anglo-Saxons so well that to-day ethnology shows the prevailing type of head and feature in England to be still the ancient Iberian. In time the Anglo-Saxons became cultivators of the soil and swineherds, of whom the illustrious Cedric in Ivanhoe is such a shining example. The native village communities persevered from Iberian through Celtic and Roman into Anglo-Saxon times. They furnished the foundation for the Roman country estate system, which existed in Roman Britain, and for that incipient manorial system which shows in the Anglo-Saxon period; and, mixed with Anglo-Saxons, they supplied the developed manorial system of serfs in Plantagenet times. These serfs became the villains of the earlier English law and the copyholders of the later law.
The Anglo-Saxon period of England lasted from 450 A. D. to the Norman Conquest in 1066, a period almost twice as long as it has taken to settle and develop the United States. During that long period great changes took place in the Anglo-Saxons. When they landed their institutions were of the most primitive description. They were wild and savage even for Germany. They parceled out the land among the leaders of tribes called kings; the noble class among them and the freemen obtained their share of the soil. The invaders, it is likely, brought few slaves, and they had the system of kindreds, the ordinary Aryan development. They had the general tribal assembly, which elected the leaders and passed upon disputes among the kindreds. They had the composition system for homicide and other wrongs, but they still were at the stage where if a dispute arose and composition was not accepted, the blood feud was the result. They were as yet in the stage where the loose organization of the tribe had not assumed the duty of adjudicating law for the kindreds or members of the kindreds, and where all submission to any tribunal was voluntary with the disputants.
As soon as the work of Anglo-Saxon conquest was complete, and in fact before it was complete, these various tribes of Angles and Saxons, whose only occupation was war, naturally began to fight among themselves. The ordinary freemen formed the fighting force under their nobles and kings. The result of tribal warfare was to consolidate aggregations of tribes on almost the lines of the present shires of England. The West Saxons, the East Saxons, the Kentishmen, the Mercians, and the Anglians were the main consolidations, but gradually the West Saxons fought their way to leadership. Before this had happened the Roman Church had converted these people to Christianity. At once came in the churchmen with the Church institutions, and the elevating influence of the Roman legal tradition was felt. The Church rapidly obtained property, bishops were appointed, monasteries were introduced. The churchmen brought in the written document and deeds for lands of the kind that prevailed upon the Continent.
From the constant state of warfare, the same effects resulted as upon the Continent: the feudal system began to develop, weaker men put themselves under the protection of stronger men, the kings granted lands to their followers upon services, but much of the land remained on the old holding of the conquerors. Land held on that original title was called folcland, or land held by the title given from the conquering tribe, or folk. The land held by deed, in Anglo-Saxon called book or writing, was called bocland. The kings, of course, granting land to their followers, used the book or deed. The Church took care that its lands were held by deed, or as the records show, if deeds were wanting, they had no difficulty in forging them.
By the aid of the churchmen a further step was made by transforming the county assembly into a regular court. The tribe was divided into hundreds, where the basis of the numbering was a hundred families. Distances were long and traveling difficult, so, as a natural convenience the hundred formed a court for their small disputes. A further subdivision was of the hundreds into tithings, or combinations of ten families, where the members of the tithings became responsible for order among themselves. This organization was called afterwards by the Normans the frankpledge. The large convocation of freemen was the county court, which was made up of representatives from the hundreds. It is likely that the county court was originally presided over by the bishop and the tribal leader who passed for a king. It formed a means of dispensing some sort of justice for the tribe. When consolidations of tribes took place the former tribal chieftains became ealdormen. Still later the head of the county was the earl, who took the place of the ealdorman. The kings in imitation of continental royalty had their immediate followers called the king’s thanes.
The whole point is that all the change and improvement in the law came from the influence of the churchmen. They alone had the necessary knowledge; they knew how to draw the documents, they furnished the kings with royal clerks, and all their knowledge of law came to them from their clerical education as in the Canon law.
At last the West Saxons fought their way to the sole kingship. An additional set of rules and institutions was now needed to consolidate and support the general kingly office, which had become hereditary. Especially was needed a means of raising revenue and an army. These meth-ods were borrowed through the churchmen directly from the Continent. It must be kept in mind that in that age a bishop was a prince and a ruler in his own diocese. He was generally the greatest landowner, and his ecclesiastical preëminence was supported by the power to damn or to save. Very often he was a fighting man leading his own troops. The court of the Church and the lay court were not separate. The bishop generally presided in the county court, and no doubt his influence was paramount. He or his priestly advisers could alone expound the law, and he naturally expounded the canon law, which was the Roman law. It was not, of course, the Roman law of the Corpus Juris of Justinian, but it was the Roman tradition that had persevered so far as there were conditions to which its rules could be applied. The men in the county court, the representatives of the hundreds, as matter of form, made the judgment or, in their phrase, spoke the doom, but it was the ecclesiastics who wrote the doom or who told the Anglo-Saxon doomsmen what to say.
The various institutions of the developing Anglo-Saxon age kept apparently in close touch with developments on the Continent. The feudal aids, the imposition of military service on the land, the granting of lands for particular services, the forms of the deeds, the organization of the royal power, all show this imitation of the continental condition. Anything that is written shows its priestly origin.
As this development was going on, the Anglo-Saxons were subjected to a series of raids by the Danes. A large part of England was lost to these Danish invaders. London was kept by the Saxons, but the Thames River was the boundary between Saxon and Dane. This boundary turned north on the Thames and ran up the middle of England. Almost half of England became Danish in the sense that the Danes ruled there. The basis of the population still remained what it had been. Compared with the original dwellers, the proportion of Anglo-Saxons or Danes was relatively small. At last Danish kings overran all England and Cnut and his sons ruled for a period. They ruled by means of the same kind of law as the Angles had. Then the Anglo-Saxon kingship was restored under Edward the Confessor. He had passed his early years as an exile in Normandy, had received all his education there, and while he sat upon the throne did all that was in his power to introduce the Norman institutions and manners. When he died, Harold, a mixed Saxon and Dane, seized the kingship; but William, the Duke of Normandy, claiming under the nomination of Edward the Confessor, descended upon England and in the one Battle of Hastings destroyed the Anglo-Saxon army and rapidly overran the country, which thenceforth was ruled by Normans.
From this time forward the two coalescing systems in the law were the Anglo-Saxon, largely formed on the Roman tradition, and the Norman, which was almost wholly the product of the Roman model. Not much change was needed in Anglo-Saxon institutions to adapt them to the Norman desires, while the body of substantive law was relatively small, owing to the simple condition of society. To make this plain it is necessary to show what the Anglo-Saxon legal system, ruled in all intellectual matters by the men of the Church, had become under the consolidated kingship.
In the first place, all tribal and family ownership of land had passed into individual ownership. The classes of people, the king, the nobles, the freemen, the serfs and slaves, were the common ingredients of the continental feudal state. The churchmen constituted a class of themselves, and in England ruled their own affairs, and taxed themselves if they were taxed. The population was arranged so that a certain number of men became responsible for the conduct of each one of them. The system of compensation for injuries was indicated by the terms wer, or compensation to the family for a death, bot, compensation to an individual for any other kind of injury, and wite, which was a sort of fine to the lord possessing jurisdiction (called in their words sac and soc) over the place where the injury happened. The human slave or servant, the nonhuman animal or the inanimate thing causing an injury became forfeitable as a deodand. This principle almost certainly was introduced by the priests out of their divine law taken from the Bible. While all offenses were considered private matters, there were certain acts that were offenses against the king. This was an idea evidently borrowed from the Continent, a relic of the Roman law. The Anglo-Saxon law did not enter into questions of intention as to responsibility. A man was liable for the conduct of himself or his slave or serf, or for one of his family, or for animals or things under his control. The medieval mind was not capable of the refined distinctions of the Roman law.
The land system was mainly one of dependence. The open-field system of husbandry existed. Dependent village communities with open fields were the rule. In addition to the folcland and bocland heretofore mentioned, there was the lease of land for one or more lives. This land was not usually alienable by the lessee. No distinction yet existed as to estates of freehold and less than freehold. The law as to marriage and divorce was wholly the churchman’s Roman law. In regard to movable property, possession was property and sales were required to be made openly. There was practically no developed law of contract. The Anglo-Saxons had had no law as to wills, but the priests had introduced that law from the Roman law. If the churchmen expected to get lands or property of any kind, they must, when the sick man lay cowering in the fear of death, be able to offer him absolution and a safe journey to heaven, provided, of course, he showed his remorse and penitence by willing property and deeding land. Wills mean individual property. Such wills or deeds conveyed land directly to God and his church or to his Saint at a certain place.
The procedure of the courts was formalistic, but the churchmen had introduced a writ on the Roman model, which was the same for the recovery of both real and personal property. If a man kept real property from the owner, he deforced him, and this was true of a debt as well as all other personal property. Such a procedure could apply only to tangible property.
The churchmen recognized the value of the oath in legal proceedings and the county court applied the remedies. The man making the claim appeared and made oath to his claim stated according to a rigid form. He was supported by others as witnesses, called the secta (suit) by the churchmen. Thereupon the defendant was served with notice to appear and good summoners proved the service, if it was necessary to prove it. The defendant appeared and took a formalistic oath of denial of the claim and offered to produce his proof. All this must be done according to form or the party at fault lost the case. The usual and normal course was for the court to decide who should have the right to make proof. There was never any trial, never any rational weighing of contradictory evidence. It was all a formal affair. If, for instance, the question was as to a debt, the pleading of the plaintiff was that the defendant owed him money. The defendant denied that he owed money to the plaintiff. This performance leaves the whole question in the air. Does the defendant mean to say that there was once a debt and that he had paid it, or does he mean to say that there never was any debt? If he denies that any debt ever was created, then the plaintiff ought to prove the debt. But if he admits that a debt existed but that he has paid it, then he ought to prove the payment. No one is able to say what an Anglo-Saxon court would do in such a case.
In after times, in Henry I’s reign, the course would be that the court would examine the plaintiff’s suit or witnesses, and if the court thought that it was fairly plain that there was a debt and that the defendant meant that the debt had been paid, it would award the proof to the plaintiff, and if the plaintiff took his oath before God upon the holy Gospels that there was a debt and that the defendant had not paid it, and his witnesses swore that they believed him, he recovered and the defendant’s proof was never heard at all. On the other hand, if the court thought that it was not plain that there was a debt, it would award the proof to the defendant. This meant that the defendant must take his oath supported by twice as many witnesses as the plaintiff had witnesses in his suit. This was called defending two-handed or four-handed or six-handed or twelve-handed, as the case might require. Thus, if the plaintiff had one witness, the defendant defended with two witnesses, thus giving effect to the biblical injunction of two for one. If the plaintiff had two witnesses or three or six, the defendant defended by four or six or twelve. There is some uncertainty as to whether the defendant counted as a witness. At any rate all that the supporting witnesses swore to was not any fact but merely that they believed the defendant or the plaintiff as the case might be. It is likely that in Anglo-Saxon times the whole proceeding was one where the defendant was always awarded the proof.
This proceeding was the one regarding every civil claim. In criminal cases the defendant made his defense by the aid of compurgators or witnesses, but if he was of bad character or the crime was a grave one, he was subjected to the ordeal, which was made by the churchmen a merciful proceeding. The Conqueror’s son, William Rufus, openly hooted at this priestly ordeal as an effective mode of criminal trial. In a case involving a sale, or the recovery of specific goods, or land, the procedure of awarding proof applied. But wherever there was a document with witnesses or transaction witnesses the proof was called proof by witnesses, and it prevailed over wager of law. It is possible that the court might find some way to award the proof, so that the party palpably in the right might recover.
The normal form of trial under the Anglo-Saxons was a defense by means of an oath of the defendant and his fellow swearers. It was afterwards called wager of law, and the defendant, by demanding this defense, was said to wage his law. It is apparent that as a mode of rational trial it was an absurdity. In an early Anglo-Norman Year Book, Chief Justice Bereford said that by it any dishonest man with six rascals to aid him could swear any honest man out of his goods. The Norman judges refused to apply it except in a few actions. In the local courts manned by Anglo-Saxons it was continually used. Its evil results were probably the reason why for hundreds of years, in the English common-law procedure, trial by actual witnesses was unknown. No experienced man would believe witnesses whom a party brought to swear for him. In view of the moral development of the community, not yet made fairly honest by business or trade, the conclusion was sound. Even to-day any lawyer of experience knows that he hears more falsehood than truth in testimony given in court. A matter to be noted in regard to the exculpating witnesses is that they are measured by the ratio of two for one. It ought to be plain to every one that this practice was a churchman’s invention based upon the Hebrew law requirement that two witnesses are required to prove a fact as against the denial of one. There was nothing Anglo-Saxon about this provision, except the childish belief in the value of the oaths.
It results from what has been said that practically everything in Anglo-Saxon law, so far as it was substantive law, and the most of the procedural law came from the churchmen who were trained in the canon law. The Saxons seem to have been a profoundly stupid race and they found it difficult to take on any semblance of culture. The wager of law was a primitive inheritance, but the churchmen had remolded it. Whether the ordeal was an inheritance from the Hebrew law through the churchmen or a part of the primitive law may be disputed. If it were not plain how in other instances the churchmen imported the Hebrew law, there would be more question. There is such proof; in an edict of Charles the Bald the process is shown:
A question arose as to what should be done in the case of a freeman who had sold himself as a slave. The Salic law and the laws of Frankish kings were consulted. They were silent. The churchmen proffered the Bible, which provided that a man who had delivered himself into servitude should be a slave for six years but should be declared free in the seventh year. This was accepted by the king as the period of servitude by contract of sale. The laws of the Roman Emperors stipulated that if a freeman under stress of circumstances had sold his children into slavery, they could regain their liberty by paying back the purchase price and five per centum thereon. So Charles decided that such was already the law as to children sold and he made the Roman law applicable also to one who had sold himself. His process was to amend the divine law which made the slave free in the seventh year as a part of the general Hebrew law of acquittance at every seventh year without any payment. He applied the period, but added the requirement that freedom must be paid for by reimbursing the purchaser.
All the feudal law and the private jurisdictions of the lords came from the Continent. The churchmen probably introduced it to give them control over their own lands and their own tenants. The very method of serving a summons at the residence upon the defendant, or if he be absent upon a member of his household, was a Norman importation from the Roman law. The devastation was so bad in France that there was added to the law the provision that service could be made by leaving a copy of the writ where the home formerly stood.
Into this condition of Anglo-Saxon law were suddenly introduced Norman rulers with their Norman organization. William the Conqueror dispossessed every Anglo-Saxon landholder who had been in arms with Harold. He left certain of the native landholders in possession, but they had been enemies of Harold and of the house of Godwine, Harold’s father. William’s first insistence was that he was a true conqueror; all the land of England belonged to him because he had gained it by a conquest title. This was a current legal conception of barbarian origin, but it has remained in our conception that the United States has title to all the Indian land, subject to an Indian right of occupation. Every title to land in England must come from the Conqueror because he had become the owner of it all. This was the cardinal principle, and he and his successors made the claim good by law. The claim met two kinds of opponents: first, the Anglo-Saxon landholders who had not been killed in the Conquest or dispossessed, and who refused to give up their titles; and second, the Norman barons who were conquerors themselves and had dispossessed certain landholders and had carved out their own possessions. They claimed, by as good a title as the Conqueror himself, that they had succeeded to all the rights of the owners whom they had dispossessed. In successive rebellions such Norman claims were destroyed. All the serfs on their holdings were valuable, the free tenant farmers were also valuable. These men went with the land. The actual workers on the land were left undisturbed, but every Norman baron had followers to reward with land and the intermediate Saxon landholders suffered, no doubt, a severe proscription. Little land was left with a Saxon folcland title, but even that was held as of the king.
The next principle that the Conqueror tried to insist upon was that all the land of England was held immediately of him as overlord. But this claim he could not make good, except as to the first holder of the land immediately from the king. It was opposed to the whole feudal theory, and it would have rendered impossible a grant by one who held title from the king to a follower of his own, a subvassal of the king. Any one holding his land directly from the king was called a tenant-in-chief. The king theoretically was therefore the chief lord of every fee. The tenant-in-chief would desire to grant to his own vassal a manor to be held by the vassal and his heirs forever. If this subtenant under this subgrant held his land of the king and not from the king’s tenant-in-chief, who had made the grant, the king would have the right of escheat, and the estate in that land of the tenant-in-chief would cease. The land might have been granted by the tenant-in-chief upon a military service, such as attending upon the lord in time of war. If this subtenant held of the king he could not at the same time hold of the tenant-in-chief, for he could not render the service. The solution was the rule that all land in England was held either immediately or mediately from the king. Thus came into the law what is called the law of tenure in England. But the feudal law was modified by the Conqueror requiring all vassals and all subvassals to take the oath of fealty directly to himself.
The Normans were a race differing radically in their manners from the Anglo-Saxons. The name of the Normans came, of course, from the Northmen. They were piratical raiders who in former times had come in droves out of Scandinavia seeking plunder and a more temperate climate. They had fallen upon the north coast of France, sailed up the Seine, passed by Paris, and raided the country far up the Marne and the Seine rivers. They raided into the Loire district and sacked Tours. A compromise was attained at last by granting to the Norman Duke that part of France called Normandy, and the Norman Duke acknowledged the King of France as his suzerain. The Normans became the ruling class in Normandy, rapidly coalesced with the French or Gaulish inhabitants, and very rapidly acquired civilization and lost most of their Nordic character.
The result was a remarkable race, with all the Gaulish nimbleness of mind and some of the Northman’s strength and determination. Where the Anglo-Saxon was coarse, a gross feeder and heavy swiller of mead, the Norman was temperate and self-restrained. When Lord Eldon, considered a great chancellor, was carried every night to bed, he was a true Anglo-Saxon. His political stupidity put him in the same category. While the Anglo-Saxon was not much better than half civilized, the Norman was highly civilized. The Normans had had peace in their land for many years; schools had multiplied, the great Abbey of Bec furnished scholars for all governmental and Church service. Their lands were highly cultivated. Their buildings were superior. They were a clerkly race, fond of records and of writings. The public business was orderly and carefully recorded in suitable documents. Governmental institutions were well defined. Their discipline in war was so superior, that the Battle of Hastings had been won by much inferior numbers.
The Norman chancery had its writs for all governmental proceedings. From the Roman procedure in Gaul it had obtained the official inquest. The number of men composing the inquest was twelve. Whenever the Norman Duke desired information he held an inquest of twelve men who rendered a verdict as to the fact. The Norman courts were manned by judges learned in the law—ecclesiastics, it is true, following the Roman system passed on to them through the canon law. Above all, the Normans had a language fully developed and expressive, with a rich vocabulary. The terms of the law taken over from the Roman law were suited to a further legal development. The Anglo-Saxons were bound down by a large number of rude and uncouth dialects. Men of different shires could not understand each other, and the poverty of the vocabulary prohibited its use. It was wholly unfit for use by a civilized race. This condition continued for over three hundred years. The only language that could be used was the Norman French. Even to-day the terms of the various professions, the fine arts, of belles-lettres, of governmental administration cannot be found in the English element of our language.
As soon as William was firmly seated on the English throne, he proceeded in the sound Norman way to find out what his English realm contained. He took a census, which not only enumerated almost all of the inhabitants except some of the slaves and serfs but listed their lands and property. It required a number of years to complete this enumeration, but when it was finished the king had what is called the Domesday Book. He could now accurately tell who held particular lands and on what services they were held, what were the lands of the crown and who had claims upon them. The status of the inhabitants was determined with accuracy. How modern it is to picture the king and his clerks thumbing the rolls of the Domesday census, to ascertain where he could screw out a little more revenue or a few more knights and footmen!
There was, of course, no shifting of the inhabitants, but there were very severe regulations as to the royal forests and the game. Since these regulations or laws caused much complaint, a set of forest laws was forged and fathered on the dead King Cnut, who could not defend himself, and in consequence for centuries the Forest Laws of Cnut were accepted as true laws of Cnut. The Norman kings were merely promulgating laws, and putting them forth as already long existing, a process which became active in the reign of the Conqueror’s son Henry I, who found it desirable to throw a few legal bones to his Saxon subjects. The bones were rather well coated by Norman polish. No immediate system of laws was put out, but the Kings put their clerks to work to devise various law books, some of them made up of provisions from whatever of the old laws the Normans were willing to accept, modified as they thought best. They were willing to accept the value the Anglo-Saxons put on themselves and their injuries by way of wer and bot, but the Norman was protected by stringent provisions. Other provisions were importations from Normandy or taken from the English law as revised by the churchmen. The county courts and other local courts were allowed to continue to function, but the Norman kings appointed their own earls and sheriffs to preside therein.
William brought in his train a set of Norman ecclesiastics. Prominent among them was Lanfranc. He is said to have received his education in Roman law at Pavia, which had been stirred into some life by the example of Bologna. He came to the Abbey of Bec in Normandy and was a teacher there. William brought him to England and made him Archbishop of Canterbury, in succession to the Anglo-Saxon Stigand. The first great lawsuit was instituted by Lanfranc to obtain the lands of the see of Canterbury. The county assembly was convened and Lanfranc, having crammed on the Anglo-Saxon terms, discoursed brilliantly on sac and soc, toll and team, infangthief and utfangthief.
A more comprehensible and more important case is one between Gundulph, Bishop of Rochester, and Picot, the king’s sheriff. It is dated about 1075, only nine years after the Conquest. The Bishop was, of course, an Anglo-Saxon. He claimed lands as belonging to his diocese, but the sheriff had taken possession of them for the king. Probably the situation was that Anglo-Saxon thanes holding lands from the Church had been in Harold’s army and naturally the sheriff seized their lands and in doing so ran upon the Church as a landowner. The case shows first that though the king could probably not be sued, the simple device of suing his officer could be used, just as to-day, although one of the states of this Union cannot be sued in a federal court, the device is used of suing the State officer acting under state authority. A bishop of the Church with its power behind him was a very different person from an Anglo-Saxon landowner. The bishop brought an action claiming that the sheriff was deforcing him. The chancery of the king issued a writ commanding that all the men of the county should be assembled and by them it should be proved to whom the land in truth belonged. The writ designated Odo, Bishop of Bayeux, who was then Chief Justiciar of the king, to preside over the court. He was the younger brother of the king.
By the men of the county who were to be assembled as the court, was meant those Anglo-Saxon freemen who, in former days, were assembled as the county court. But this writ imposed a new conception. In Anglo-Saxon days these men were the judges, they as doomsmen spoke the doom, but now they were witnesses to give information to the king’s judge, who was the authority to render the judgment. This is a complete revolution and imposed upon England the Roman rule that the judge made the judgment.
The county court was assembled in pursuance of the writ, the Chief Justiciar presiding, but the account says that the men of the county were in fear of the king’s sheriff, so they said that the land was the king’s. The Bishop of Bayeux presiding did not believe what they said. He directed the county men, if they knew what they said to be true, to select twelve of their number to confirm upon oath what the whole body of the court had said. Here is the first jury of twelve men ever assembled in England to make a conclusive statement of the facts upon which the judge of the court is to act in making his judgment. This is a transplanting of the Norman inquest of twelve men to become a constituent part of a court in certifying upon oath to the facts.2 At this time inquests of twelve men were at work all over the realm certifying to the facts of the Domesday survey, but these inquests were not in litigation. The twelve men were selected, they withdrew, but they, too, were greatly terrified by a message from the sheriff and came back and swore that what the men of the county said was true. Thereupon judgment was entered for the king and he had obtained the lands.
Up to this point the case would show certain fundamental changes in procedure, introducing the Norman and Roman proceeding by inquest of twelve men into the court procedure. But the matter went much further. A certain monk now came forward and told the Bishop of Rochester that the verdict was wrong and that one of the twelve knew it, for he held his own lands under the same church title. The Bishop took the monk to the Chief Justiciar, who heard the statement. The account tells of the scene of the Chief Justiciar sending for one of the twelve and of the wrath of the Norman at learning that despite his better judgment he had allowed himself to be imposed upon by a gang of cowardly and perjured Saxon churls. The man in fright threw himself at the Justiciar’s feet and confessed that he was a perjurer. Then another of the twelve was called in and he confessed. The Chief Justiciar now convened many of the greater barons. They, both French and English, adjudged the jury to have made a false oath in their verdict.
The question then arose of what to do. There was law in Normandy for convicting an inquest of making a false oath, but there it was unheard of that the judgment based on the false verdict should be set aside and a contrary judgment entered. Nevertheless the Chief Justiciar, without hesitation, did what he could not have done in Normandy. He reversed the judgment and entered a new one for the Bishop of Rochester, awarding him the lands, and the jury were fined three hundred pounds to the king.
This proceeding is of the highest importance in English law, for the next we hear of this proceeding is in Glanville’s book a hundred years later, but then the proceeding is a settled thing. The point to be noticed here is the original meaning and office of a jury. It is not a body as we know it, which hears the evidence of witnesses and decides from that evidence upon the facts. The original jury was simply twelve men, who are called into court to be the witnesses and the only witnesses as to the facts. They make up their verdict on their own knowledge, and for four hundred and fifty years this was just what an English jury did. The only feasible way in which such a verdict could be set aside was for another better informed body to be called in to say that the former witness jury spoke falsely. Whereupon a new judgment could be entered to the exact contrary of the former judgment. That jury being what it was, this new reversing jury proceeding was an eminently reasonable and proper device. It is much more effective than our method of the judge granting a new trial. A new trial simply wipes out the former verdict, but does not substitute a correct judgment. This procedure gives the new and correct judgment. When we find this procedure again after almost a hundred years of that silence which enshrouds legal matters until Henry II’s reign, it is called the process of attainting a jury. It is found to be carried out by a jury of twenty-four knights, following the Bishop of Bayeux’s plan of selecting the attainting jury from men of higher standing than that of the jury to be attainted.
It is not often in these early times that we can find the man who invented procedure in the law, but to this Norman is unquestionably to be ascribed, first, the use of a sworn jury of twelve to decide upon the facts in a lawsuit, and second, the procedure of correcting a false finding of the jury. This process of attaint lived long in the law. It was not until about 1650 that a common-law court found that it could grant a new trial. About all that we know of this inventor of the attaint is that in the Conquest he strongly supported his elder brother with men and money. The Bayeux tapestry shows him at the Battle of Hastings on an armored war-horse leading his knights, but he is given a clerical baton instead of an unclerical sword. He was rewarded with great landholdings in Kent and became Chief Justiciar, the highest office in the realm. He afterwards quarreled with the king and was sent back to Normandy. Thence one account says that he was exiled and set out for Rome with a large amount of money to buy the papacy. It was assumed at that time that all that was necessary was to appear at the College of Cardinals and, with the utmost sang-froid, to distribute enough money, and the process of becoming pope, was as easy as becoming a United States Senator in localities where such commodities are for sale. The account says that the good Bishop died at Palermo, the Norman capital of Sicily, before he got a chance to use his funds. Another account says that he enlisted in the first crusade and died at the siege of Antioch. But whether he died as an exile or as a warrior for the tomb of Christ, English law owes to him two procedural institutions that dominated the common law for centuries.
The laws of the Conqueror introduced trial by battle into England. It was extended as a right to all the Norman subjects and an Anglo-Saxon in a contest with a Norman could claim it. The Church was tied down by strict regulation to the effect that no bishop in a bishop’s court could implead or excommunicate any of his barons.
When the Conqueror died he was succeeded by his son, another William, who spent his time in quarreling with the Church and wringing money from the Church coffers and lands. The third Norman king was one to whom the English law owes a great deal. He was Henry I, the youngest son of the Conqueror, surnamed Beauclerk, “fine scholar.” The Anglo-Saxons were now holding up their heads and complaining, demanding with true popular stupidity the good old laws. Henry had sworn in his coronation oath to observe the old laws, and no doubt decided to tell these Anglo-Saxons what those old laws were. Henry’s clerks were put to work to appease the Saxons with older laws, such as the laws of Edward the Confessor, laws of the Anglo-Saxon kings translated with selection and discretion, laws of Cnut, laws of William the Conqueror, and especially the laws of Henry himself, represented to be old laws.
These collections were made up of some little Anglo-Saxon matter, but with a great deal of Canon law and Roman law inserted. The legal historians quote these laws, especially the laws of Henry, to show what the pre-Norman Anglo-Saxon laws were. This is all inadmissible. Those laws simply show what Henry and his clerks desired the old laws to be. But it is a curious fact that an English historian will go into paroxysms of indignation over the forged Donation of Constantine or the forged Decretals, and yet quote with the greatest equanimity these forged laws of English kings and treat them in all seriousness as proof of the precocity of the pre-Norman law. All this part of the English historical legal writing is without any reliability.
During this long reign of Henry I the king’s justices were sent out to make perambulations of the country, to convene the county courts, and to preside in them wherever they came. It is certain that the judgments entered were those of the justices, not those of the men composing the county court. A new court was created called the Exchequer, sitting at Westminster, which heard all matters relating to revenue, and where all the accounts of the king’s officers were rendered and settled. The churchmen who were the king’s justices decided all the cases of every kind which they found were to be decided. They proved very satisfactorily that if a man desired justice he could obtain a much better justice from the king’s clerical justiciars than from the haphazard county tribunals, when no king’s judge was present. The Norman population, of course, took their legal matters to the king’s justices.
One change made by William the Conqueror was to have lasting results. He, probably at the instance of the churchmen themselves, took the bishop out of the county court and thus created in England the separate ecclesiastical courts of the Church. All the conceded jurisdiction that belonged to the ecclesiastics went to the Church courts. One part of the Church jurisdiction was the trial of any ecclesiastic for any offense. Thus came into the law the procedure of benefit of clergy. This was a right in the defendant to claim that he was an ecclesiastic and, if the fact was established, to be remanded to the bishop and dealt with as an ecclesiastic in the bishop’s court. The test was whether the defendant could read or write, and the general result was that for a long time in English law a man who could read and write escaped any punishment for crime, except as the bishop’s court might impose it. The change resulting from taking the bishop out of the county court resulted in the contest between the lay courts and the ecclesiastical courts, which continued in England for centuries. One of the first writs devised was the writ of prohibition, still a common-law writ, which prohibited an ecclesiastical court from any further proceeding in a case.
The Conqueror also utilized the Anglo-Saxon institution whereby a rudimentary sort of police organization had been obtained through a certain small number of men becoming sureties for each other’s appearing in answer to criminal charges. Under the Norman kings the institution was called the frankpledge, and was applied to the free Anglo-Saxon subjects. The Conqueror also provided a system of taxation whereby all the land was bound to military service and each particular unit of land must produce men for military service. This military service was commuted in many cases for a money payment and finally the tax became a regular tax in money called scutage, the shield tax. The Norman kings did not recognize the claim of the churchmen to the right to tax themselves, and the Church lands were made subject to military service.
Another feature of Norman law was the conception of the king’s peace. In Anglo-Saxon times all the holders of jurisdictions had the right to hold that any breach of public order within their jurisdictions was a breach of their peace. The Norman kings took this conception and broadened it always in favor of a greater jurisdiction for the king’s judges both in civil and in criminal matters. In actions of trespass the writ issued stated that the trespass was done contrary to the peace of our lord the king. This at once gave the king’s judges jurisdiction. All offenses committed in public places were considered as breaches of the king’s peace. Every important offense was appropriated as a breach of the peace of the king. The Norman kings did not attempt to do away with wager of law, but they rapidly came to the point where it was allowed before the king’s judges only in the matters of actions where it had been applicable. It was not allowed to apply to any new writ, and especially to trespass writs.
After the death of Henry I and the civil war that followed between rival claimants to the throne, the matter was compromised by giving the succession to the grandson of Henry I who is known in history as Henry II. He was a very capable ruler. It’s not necessary to consider that he had any wide theoretical views upon the extension of the law and the authority of the king’s courts, but he was very vitally interested in the revenues from justice. Not many years after he came upon the throne, certain writs were devised whereby all litigation as to the ownership of land was thrown into the king’s court. These different writs were called the assizes of novel disseisin, mort d’ancestor, last presentment, and utrum. The minutiae of law in regard to these writs would not be interesting, but it is sufficient to say that if one man dispossessed another of a freehold estate the other could bring the writ of novel disseisin, or new disseisin. If, upon the death of an owner, a dispute arose between claimants, the writ of “death of ancestor” was used. If a question arose as to who had the right to present a priest to a church, the question was tried upon the writ of last presentment, and if a dispute arose as to whether land belonged to the Church or to a layman, the question was tried on a writ of utrum, whether the land was a lay or an ecclesiastical fee. All these writs were borrowed directly from the Roman law.
The matter of special importance was that in each one of these writs it was stated that the sheriff should call together twelve good and lawful men of the vicinage, and these men should state the fact as to whether on a writ of novel disseisin the defendant had dispossessed the claimant unjustly and without judgment, or on the writ of death of ancestor, whether the ancestor died seised, and the claimant was next heir; and similarly an issue was stated in the other writs. These twelve men were called an assize, and these cases called assizes were tried before the king’s judges when they came to the district, although originally the sheriff with his panels of jurors was required to come to the king’s court at Westminster with their verdict. It will be seen that this is exactly the procedure to ascertain the fact devised by the Bishop of Bayeux in the Conqueror’s reign.
It is plain that by this time the Norman lawyers had worked out the legal conception of seisin as distinct from a good title. Seisin according to them was undisturbed possession for a period. After that period the one who had been in seisin before he had become dispossessed could no longer enter by self-help, he must bring his action. Self-help, however, could not extend to a breach of the peace. Then it was for the assize to say whether the disseisin was rightful. Thus almost every dispute concerning freehold land was brought to the king’s judges in the royal courts.
About this time the book called Glanville was written. Its general language is borrowed from the Roman law, but it contains notices of the writs collected in the chancery up to that time, and the growth of the law is easily ascertained up to his date. It is very meager. The newly invented assizes are noticed last in that book, and it is likely that Glanville’s treatise followed the writs as they were arranged, one after the other, in the Register of Writs, and that in his time only the writs he noticed were in existence.
There was another writ for trying the title to land called the writ of right, and this writ tried the question as to the highest right to the land. For this writ it was provided that the defendant could put himself on the grand assize or could demand trial by battle. The battle was at first an actual fight. Women could have a champion and afterwards any one could choose a champion. Battle was a defense to crime. In Ivanhoe the famous battle issue offered by Rebecca was a strict legal right. If the defendant put himself upon the grand assize, he was given a jury of twenty-four knights. This writ was an invention for the benefit of the Normans, and it came from Normandy.
This situation brings out clearly the power of legislation in the king, sitting in his Great Council. The English Parliament was a gradual growth and was a hundred years away from Henry II’s reign. The first actual Parliament with representatives of the commons in it was called together by rebel barons in the middle of the thirteenth century.
By the regulations of Henry II the grand assize was turned into a grand jury, which whenever it was thought desirable, by a presentation called afterwards an indictment, preferred a charge that was a criminal charge. The Anglo-Saxon barbarians’ system of compensation was never permitted to apply to these charges. But there at the same time survived the appeal of felony which was a proceeding brought by the injured or if he were dead, his kindred, against the accused. The regulation of the Norman kings permitted the defendant to claim a trial by battle.
There is nothing said in Glanville’s book, which dates about 1187, as to any process for setting aside or reversing the verdict either of a grand assize or of the other assize proceedings. Glanville simply says that there is a punishment for false swearing in the grand assize, but he says nothing about any false swearing in the so-called petty assizes of novel disseisin and the others. The only conclusion is that it was already established that a verdict of twelve could be set aside by a verdict of twenty-four knights. This proceeding to set aside a verdict was one of grace, not of right. The number of twenty-four would naturally be taken under the Church’s rule of two witnesses against one, and knights were selected as men of greater standing and importance. There was never any way of attacking the verdict of a grand assize of twenty-four knights. That was a finality. It is not likely that a jury of Norman knights who could defend against a crime by battle would submit to be attainted by the verdict of another twenty-four knights. A jury to attaint a grand assize is said by Bracton to be impossible. There is a case thirty-six years after the institution of this assize system which shows that at that time a jury could be attainted. A verdict in an assize of novel disseisin was returned and the bailiff of the losing party offered the king twenty shillings for a jury of twenty-four knights to convict the assize of a false oath. The offer was not accepted, because the bailiff had no sufficient power to bind his principal, but this case indicates that the attaint was then well known. The number of the jury and the character of the jurors was fixed for the attaint, but it indicates that the granting of the writ was discretionary with the king.
The law went on year after year developing new writs, applicable to new cases that arose. Every new writ meant a new kind of action. In the meantime a political quarrel had arisen between the barons and King John, and the king, by the combined force of the Church and the barons, was compelled to sign what is called Magna Charta. It contained many provisions, but the special provision for the general law was the one which established the doctrine that in England there should be a reign of law, since the king engaged that he would take no proceedings against any one except by the judgment of his peers or the law of the land. This is the classic statement for English law that the government is subject to the laws; but the provision had also an evil effect. It provided that no one should be disseised, outlawed, imprisoned, or in any way destroyed, except by the judgment of his peers or the law of the land. This was of effect in driving the common law courts wholly to the use of a jury.
The long minority of John’s son, Henry III, enabled the law to be more fully developed. But toward the end of the reign of Henry III, a singularly inept sort of king, there was civil war in England between the king and his barons. It was in this civil war that Bracton’s law book was written. The issue in the war was whether the king and the government were bound by the laws. Magna Charta, extorted from King John, merely embodied the prevalent ideas of the age upon law that were in vogue upon the Continent. John of Salisbury, the secretary of Thomas à Becket until that martyr was murdered by the knights of Henry II, had quoted the famous Digna Vox rescript from the Roman Code, mentioned in the preceding chapter, and added that a true king thinks nothing lawful for himself that is contrary to the equality of justice, and he affirmed that a king enfranchised from the bonds of law was really an outlaw. Magna Charta bound the king to govern by the laws. It pledged him that his courts should not deny or delay justice and by its use of the term “the law of the land,” afterwards changed to “due process of law,” it gave the original statement of a universally used constitutional limitation.
The idea that the community must assent to the law in some way was already in existence. The canon law held that no law was valid unless it was accepted by the custom of those concerned. The canon law affirmed that even the pope was bound by the laws. Beaumanoir, a contemporary of Bracton, stated the law to be that all princes are bound to keep and to cause to be kept the laws, and they are bound by legal custom proved either by the general assent of the whole country or by the judgments of courts, if the custom has been the subject of litigation. It is still the law that a rule of law can be proven by decisions of the courts. Bracton, writing about 1260, adds that laws cannot be changed and destroyed without the common consent of all those by whose advice and consent they were promulgated. He insists that legal customs have the vigor of law. He says that the king has superiors which are God and the law which made him king, and if the king should be without a bridle, a bridle should be put upon him. He lays down the principle that there is no law where power and not right governs, and that the king must attribute to the law what the law gives the king, rule and power, and that the king’s power is restrained by the law which is the bridle of power.
There was the practical question as to how the law could be enforced against the king. The lawyers saw the difficulty of the king’s writ running against himself. Bracton admits that the king being the fountain of justice cannot be sued, that the remedy is by petition that he correct his act, and if he will not do it, the commonwealth and the baronage ought to correct the act in the court of the king himself, by which he means the Great Council made up of the magnates of the kingdom. Bracton says that in receiving justice the king should be compared to the least of his kingdom. This old law early established is the original of the rule in this country that neither the federal nor state governments can be sued, except as the government may permit.
The law has a long life and a very long memory. At the end of our Civil War the United States government was in effect sued for confiscating without warrant of law the estate of Arlington, where is now the National Cemetery. This land had descended from Washington’s stepson to the wife of the rebel commander, General Lee, and to her son, G. W. P. C. Lee. These sentences quoted above from Bracton’s treatise were cited by a dissenting judge writing an opinion in that case to justify the claim that the government cannot be sued. It is something momentous in the story of the law that, amidst the bitterness and passions of a great civil war, it could be held that even the government of the people itself could not confiscate property against the law of the land. It reminds us that during our Revolutionary War certain shares of Bank of England stock stood in the name of Washington, who was in arms against the English government, yet all through that war the dividends upon that bank stock were regularly paid to the commander of the army of rebellious Americans. Washington was a rebel in arms against England but the Bank of England was a commercial institution and here as always the honesty instituted by trade is far superior to any other conception of honest conduct. Perhaps this was due to that fine courtesy among cultivated men, so characteristic of the eighteenth century. It is not noticed in our school histories that after the surrender at Yorktown in 1781, Washington gave a dinner to the captured English commander, Lord Cornwallis, and his officers, and to the French allies, Count Rochambeau and his officers. A fine tone of mutual consideration prevailed among the Americans, English, and French, which ought to be a lesson in manners to some of our present vociferous patriots. Lord Cornwallis in his gallant way proposed the health of Washington and said many true things of that steadfast soul. Not least striking in his toast was his recognition of Washington’s fine generalship and fortitude during the dark days of Valley Forge. It is after all much that one should be born a gentleman. Not only are we indebted to England for our laws, but it would be well if we could remember that originally we were indebted to England for those manners of which both Washington and Cornwallis were such splendid examples.
[1. ]Edward A. Freeman (1823–92), James Anthony Froude (1818–94), and Bishop William Stubbs (1825–1901). —C. J. R., Jr.
[2. ]One should beware of perceiving the jury as solely a Norman transplant. For a discussion of both the Anglo-Saxon and Norman contributions to the shaping of the jury, see Raoul van Caenegem, The Birth of the English Common Law, 2d ed. (Cambridge: Cambridge University Press, 1988), pp. 62–84. —C. J. R., Jr.