The story of English law
An essay in nine easy tablets
Some years ago, I wrote a book called ‘The Common Law, A History’. I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law. That in my view is worse than sad. This essay is not a précis of that book. It is an introduction written for the general reader. People at large should have an interest in the history that underlies and underwrites our way of life. It also represents the bare minimum of what law students should be taught. The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy. I will publish the essay by nine consecutive posts on this website. I hope you get some of the enjoyment in reading it that I got in writing it.
The Norman invasion and settlement
England had been divided both tribally and politically – a drab, uneasy, damp collage. The Normans added to the ethnic mix, but they brought, by force of arms, unity under one English crown. That crown would be buffeted by rivalries under great magnates, ending with the agony of the Wars of the Roses, and it would be in suspension during the epic duels over sovereignty in the reigns of the Stuarts, but back in the eleventh century, it was like taking a small amateur cricket club and turning it into a fully professional national outfit with all the bells and whistles. And hold on to the analogy of the cricket club – because in so many ways such a club conforms to the spirit of the governance of England – except that not so many national dreams would be turned into ashes.
Compare, then, this vibrant club to Europe. We are talking about events taking place more than a millennium ago – in a nation created out of invasions. France would not have a law common to all France until Napoleon, and it was only well after that that the nations of Italy and Germany came into being. So, here is another ground for seeing England as different to and far more precocious than the emerging Europe.
Anglo-Saxon governance was good at the local level. The English would aways prove very adept at getting value from their better people. But justice back then was not so good at that level – although they certainly appear to have been able to dish out a rough kind of justice uninhibited by the kind of formalism that would beset English law.
And it was now time for the crown to resume its role as the fountain of justice to be administered by what in the Strand are still called the Royal Courts of Justice.
The process began with a writ. We all know what that is. It’s the kind of ‘bluey’ you disregard at your peril (unless you are asset free and bullet proof). Still today in Melbourne you can be served with a command issued in the name of the Queen that you appear in her court to answer the complaint of the person aggrieved. In many contexts, it is the continuation of negotiations by other means (with apologies to Clausewitz). This is a facility of government used to preserve the peace by resolving disputes. Nations that do not get that right might forfeit the right to the label of ‘civilised.’
Henry II comes down to us as responsible for the murder of Beckett, but he and Edward I were founding fathers of the English legal structures. They developed the processes by which a law common to all England would come to be administered through their courts.
But the phrase ‘common law’ has a much wider reach. We see it when judges decide cases by applying the doctrine of precedent to their previous decisions. A course of decisions then is found to contain a statement of the law – a principle derived from a ‘line of authority’.
Someone driving a stagecoach may be liable at common law for damage caused by his negligent driving. Would that precedent cover the driver of a car, or a ten-ton truck? A farrier may be liable for a bad shoe on my horse. What if I have not promised to pay him – expressly or impliedly (what our law calls a contract not supported by consideration)? Is a map-maker who gets one line wrong liable for the loss of a ship the size of the Titanic? Does a power to regulate broadcasting extend to TV? Satellite navigation instruments? And so it goes.
That process continues today in a court near you after, say, 900 years. It has been accompanied by supposition and artifice, often properly described as ‘fictions’ – yes, fiction is the word in the books – but while the English may have been coy, they have never been shy, about gilding the lily.
When people start laying down their laws, historians tell us that they tend to get preoccupied with forms and technicalities. That phase is described as formalism. Moses and other law givers certainly went into vast technical detail, some of which is still applied by those of a more orthodox caste of thought.
Well, the English would go through a phase of formalism for about 600 years. It could well have choked the common law to death in many ways. There would be two main avenues of relief – the legal system would provide a process and courts to operate relief valves as safeguards; and the parliament intervened at the end to scrap the worst excesses of the judges.
The problem set in a little like this. If you want something from government, you go to the departmental counter – or worse, a website – and you brace yourself for indoctrination intoned about different kinds of forms or boxes to tick or mandatory fields. You are told that if you don’t get the right form, it’s game over. You try to follow the way of other winners. Precedent took the lead from the start.
This is about how what we now call the common law got started in the period after Magna Carta – about say150 years after the Norman invasion. The person going to court asks the court clerks to issue a writ – which is a directive from the king to the person sued. But the most important thing was the ‘form of action’. It depended on the kind of claim – trespass to the person (assault), breach of a sealed promise, or a failure by a farrier properly to shoe a horse, and so on. Once committed, the plaintiff could not change his mind – or his form. He must follow the rules of the form of game he has chosen. Some might think of the smarmy security of the in-crowd in Yes, Minister. The poor litigant may have thought of Russian roulette.
Lawyers got involved in arguing about the forms. People made notes of those arguments. Those notes make up a large part of our first law reports. They are called the Year Books – running from 1268 to 1535. Although most arguments turned on matters of form, some substantive issues arose. What is a legal contract? What wrongs can you sue for? This led Sir Henry Maine to say that the substantive laws were ‘secreted in the interstices of procedure’.
There is a real point here. It was typical of the English that matters of great principle would come from petty arguments about process – as if by accident. It is as if the design was to avoid any active intervention by the judge. We saw a similar attitude to the way the issue would be decided. God, not the judge, would decide – by the mechanical operation of the ordeal, trial by battle, or collecting character evidence. The whole process was meant to operate like an impersonal conveyor belt.
Well, we know that all that had to change. And it did – by the development of another process that the Normans brought with them – after the Church got squeamish about the other techniques.
It had been the custom of the Norman kings to determine how affairs were proceeding in their realm by calling together people of substance from the neighborhood and who might be expected to have knowledge of the matter inquired of to come together and answer questions – on their oath. This was the process invoked by William I to assess the worth of his conquest. That led to the famous Domesday Book.
But might not that or a related process be invoked to answer the question: Did the accused murder the deceased? So, here we see the germ of another jewel in the English constitutional crown – trial by jury.
That process would also take hundreds of years, in the course of which any special knowledge of a juror would become the reverse of a qualification to sit in judgment on the issue before the court. This is because the Normans had developed the process as an administrative, not a judicial inquiry. And such an inquiry, like our Royal Commissions now, is inquisitorial in nature. But everyone knows that our trial process is the accusatory model – to which we have been wedded for centuries. And which we will go into the trenches to defend and keep.
Before the end of the thirteenth century, we get reports of cases that record ‘Issue to the country.’ In later trials, after the indictment was read, the court would inform the jury: ‘To which charge the accused pleads not guilty, and puts himself upon his country, which country you are.’
So, here is another fork in the roads taken by the English and those across the Channel. And it has consequences. There is a real difference in the world views behind the inquisitorial and accusatory modes of trial. Maitland offered these lapidary remarks:
‘The behaviour which is expected of a judge in different ages and by different systems of law seems to fluctuate between two poles. As one of these, the model is the conduct of the man of science who is making researches in his laboratory and will use all appropriate methods for the solution of problems and the discovery of truth. At the other stands the umpire of our English games, who is there, not in order that he may invent tests for the powers of the two sides, but simply to see that the rules of the game are observed. It is towards the second of these ideals that our English medieval procedure is strongly inclined. We are often reminded of the cricket match. The judges sit in court, not in order that they may discover the truth, but in order that they may answer the question. ‘How’s that?’… But even in a criminal cause, even when the King is prosecuting, the English judge will, if he can, play the umpire rather than the inquisitor.’
That is, or should be, still the case today, although for some whizz kids, the restraint is too much.
But there was more juristic pollen in the air at this time in the High Middle Ages. We saw that kings would consult with the right people and take advice. This goes back to the Witan in the German forest. As the system settles and expands in what is now England, those who have what we now call skin in the game will want to be consulted – and they will look to find ways to ensure, so far as they can, that the king should consult them – before, say, declaring a war – that they will have to fight. And pay for. By, say, a tax.
These are weighty issues not just for England but for humanity. They will not be resolved by the English until the end of the seventeenth century. (But except for western Europe and the former colonies of England, there are still not many places where they have been resolved.) By the time of Magna Carta, there are mentions of advisers coming together to talk. A colloquy, perhaps; never a symposium – that would be far too intellectual for the English. Perhaps something from the French verb ‘to speak’ – parler. The French would have their parlements. The English might call theirs parliaments.
Now, these are changes of great moment, but they appear to have one thing in common. None of them was planned or arrived at by design. Each fell into place as if by accident. Did the English just have what Napoleon prized most in his generals – good luck? Or was it a state of mind?
History – common law – constititution