Sources of English Law

Task 15. Review the text.

TABLE XII (Crimes)

Si servo furtum faxit noxiamve noxit.

If a slave has committed theft or harm....

Si vindiciam falsam tulit, si velit is... tor arbitros tris dato, eorum arbitrio... fructus duplione damnum decidito.

Someone who has brought a false claim shall be brought before three judges, and shall pay a double penalty or be sent to death if he cannot do the time.

Task 12. Law has its origins in the early developments of civilized society, & through time there have been major influences on the laws that we follow today. Match these sources of law with the descriptions below.

Common law, Roman law, Napoleonic Code, The Ten Commandments

_________, which evolved in the 8^th century BC, was still largely a blend of custom and interpretation by magistrates of the will of the gods. _________, evolved from the tribal and local laws in England. It began with common customs, but over time it involved the courts in law-making that was responsive to changes in society. In this way the Anglo-Norman rulers created a system of centralized courts that operated under a single set of laws that replaced the rules laid down by earlier societies. _________ formed the basis of all Israelite legislation. They can also be found in the law of other ancient people. _________ refers to the entire body of French law, contained in five codes dealing with civil, commercial, and criminal law.

Task 13. Agree or disagree with the statements.

1. The Ten Commandments are based on moral standards of behaviour.

2. In common law, judges resolve disputes by referring to statutory principles arrived at in advance.

3. Roman law is based on the principle of deciding cases by reference to previous judicial decisions, rather than to written statutes drafted by legislative bodies.

4. The Napoleonic Code was introduced into a number of European countries, notably Belgium, where it is still in force. It also became the model for the civil codes of Quebec Province in Canada, the Netherlands, Italy, Spain, some Latin American republics, and the state of Louisiana.

Task 14. Make up the sentences with the following words:

influence, development, resolve, origin, reference, be in force, previous, will, tribal.

English law has developed from a number of sources: custom, the rules worked out by the common law courts and the courts of equity, canon law, the law merchant, legislation, etc. Moreover, the growth of substantive civil law has at common law been bound up with procedure, since a right existed only if it could be enforced.

The following is an outline of the sources of English law and of the courts and other institutions involved.

In Anglo-Saxon times there existed three fairly distinct legal systems: The Dane Law, which had been adopted after the invasions and settlement of Danish and Scandinavian warriors in the coastal areas of northern and northeastern England; Mercian Law, which bore traces of Germanic origin, following the Saxon invasions, and extended around the Midlands; Wessex Law, which applied in south and west England.

In each of the three systems the law was based on customs, and the customs varied from place to place and shire to shire. There was little distinction between criminal wrongs and civil wrongs at this time; the laws were generally primitive but nevertheless served to produce such good order as could be expected. But there were courts of law where cases were heard. The Anglo-Saxon courts before 1066 were:

1. The Shire Court (or Moot), presided over by the Sheriff, the Bishop, and the Ealdorman, and attended by the lords and freemen of the county, with the priest. This court sat twice a year.

2. The Hundred Court (“hundred” means a division of a shire), presided over by the Hundredman, assisted by twelve senior thanes.

3. The Franchise Courts, granted to certain persons by the monarch. The grantees were entitled to the profits, for the suitors or litigants who brought their cases to court for trial were required to pay fees. In Norman times the franchise courts were sometimes taken over by the lords of the manor who, in deciding disputes between tenants of land, continued the practice of charging fees.

Of these three courts the shire court was the most important, but all enforced the local laws and all had jurisdiction to deal with obvious criminal offences, such as murder, theft, violence to person and property, and also the civil claims concerning ownership or possession of land or cattle - both very important sources of wealth.

The Anglo-Saxon system of keeping the peace was based on frank-pledge, a police organization which required every male over the age of 12 to belong to a “tithing”, a group of ten or more persons under a headman. All in the tithing were mutually responsible for the offences of the others and were bound to produce the offender in court if called upon. Those who did not submit to justice in the courts were declared outlaws and could be killed with impunity. In most parts of England the succession to land on the death of an owner was determined by the rule of primogeniture, i.e. the first-born son inherited his father's land. But in some places it was different, e.g. in Kent the system of landholding was known as gavelkind and under it all sons inherited equally. In Bristol and Nottingham a system of borough-English applied, which provided that the youngest son inherited.

The procedure and the proof of guilt in Anglo-Saxon courts were primitive. Trial might be by ordeal, which was in effect an appeal to God or the supernatural. It might consist of ducking someone in a pool, and he was guilty if the water “rejected” him and innocent if he sank; or in an ordeal by fire a red-hot iron would be carried a distance of nine feet, whereby if the hands had not festered within a certain period after carrying the iron the offender had established his innocence.

Another form of proof in civil cases was compurgation. This consisted in the litigant repeating an oath word-perfect without stumbling. Sometimes the claimant was assisted by kinsmen who were oath helpers (or compurgators) and similarly swore. If they too repeated the oath successfully the claimant had “waged his law” and won his claim. Juries later superseded ordeal and compurgation.

Before the Norman Conquest there was no strong central government. The king with his council (or witan) had little control over his kingdom. Royal justice was difficult to obtain.

English legal development stems from 1066 when William of Normandy gained the Crown of England by right of battle. William and his Norman successors distinguished themselves in many ways. They possessed orderly minds and were efficient administrators. They crushed the rebellious English into submission and established a strong central government.

William owned all England: all other persons possessed land either as tenants (not owners) or sub-tenants of the King himself. Feudalism, based on land tenure, was introduced into England. No immediate change was attempted in regard to the customary laws of the English, for this would have been an insuperable task. Primitive people do not take kindly to radical alterations in their way of living.

The changes made by William I include the following:

a. The King’s Council (Magnum Concilium) was set up. Here foregathered the barons, lords, bishops, and other important figures of the kingdom on whose advice and wisdom the monarch relied. Here was the strong central government.

b. A new feudalism was introduced. The King owned (in theory) all the land, and the barons, lords, bishops, and freemen held of him as tenants or sub-tenants. All tenants, whether barons or freemen, were compelled to swear an oath of allegiance to the King himself. Freemen owed allegiance as sub-tenants not only to a lord of the manor but also to the King, an important fact making for closer royal control.

c. Separation of lay courts and church (or clerical) courts, each with a definite jurisdiction. Bishops and clergy were henceforward to be tried in their own courts and Church (or canon) law was to be applied therein.

d. William and his successors achieved the uniformity of the law, making it the common law, by introducing the general ere.

Task 16. Using the information in the unit above, discuss the following:

1. There was always law in the community.

2. Influence of the earliest codes on modern law.

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