A Brief Synopsis on the Historical Precursors to Civil & Common Law: Anglo Saxon England and the Norman Conquest

Anglo Saxon England

The Romans vacated England in roughly 400 CE, which gave Anglo-Saxon England about three hundred years to develop without the influence of Christianity or feudalism, so law developed differently.   However, shortly after missionaries introduced Christianity to the Anglo-Saxons in the late sixth century, their first written code of law, the Dooms of Ethelbert, was enacted in 602.  The Dooms was mainly a restatement of Anglo-Saxon customary law that established a system of fines for certain crimes, mostly breaches of the king’s peace.  Anglo-Saxons also developed a legal system based on charters, which refer to a group of written documents divided into writs, diplomas, and wills, depending on the purpose.  A writ was a written order issued by the king, whereas a diploma usually tended to be the granting of a certain piece of land or privilege (a type of immunity—from the payment of taxes, for example).  The oldest charters that still exist today are in the form of land grants made to the Church.  Wills, on the other hand, were usually a gift of land upon the drafter of the willer’s death (but differ from wills in the modern sense).

William the Conqueror and the Norman Conquest

Anglo-Saxon England would be forever altered by the death of its King, Edward the Confessor in 1066, as there was no clear successor to the throne.  Several outsiders made their respective claim, among them, William the Bastard, a Norman Duke.  After several battles, including the Battle of Hastings, William—who history refers to as William the Conqueror, would ascend to the throne later that year, although he would not be officially crowned king until 1070.  To his surprise, the kingdom he inherited already had in place a rather sophisticated form of government administration, which was not based on a feudal system but was instead divided into units called shires,[1] which, in turn, were divided into hundreds.   Each shire was governed by an ealdorman, or alderman, and a shire reeve, which is the origin of the term sheriff.  Every hundred had a court, which would convene once per month to resolve private, mostly land, disputes, along with criminal cases. 

The spoils of war caused William to immediately replace the Anglo-Saxon aristocracy with his Norman supporters, and the shire system with feudalism—awarding Norman nobles with landholdings on the island.[2] This feudal anomaly created a very strange relationship between England and France.  Since William was a Norman Duke, he was considered the French King’s vassal, and hence, his subordinate.  On the other hand, he was also the English King, and therefore, his equal.  This would complicate the relationship between France and England for centuries to come.  For example, future English king Henry II (1154-1189) married Eleanor of Aquitaine (France) in 1152, which gave him landholdings in both England and France that dwarfed the size of the French Kingdom and made him much more powerful than the French King.  King Henry’s sons and eventual successors to the throne were Richard the Lionheart (1189-1199) and John Lackland (1199-1216), the latter of whom we know in contemporary culture as the antagonist in the Robin Hood exploits.  The French King, Philip II Augustus’ seizure of the English aristocracy’s French landholdings between 1204 and 1206 put a tremendous strain on the relationship between King John and the English aristocracy.[3]  That, along with his financial mismanagement, i.e., continuously raising taxes to fund wars with France along with clashes with English clergy would eventually force the English nobles to rebel against him and force him to sign the Magna Carta (1215).  Most of its clauses dealt with contemporary issues, such as the repeal of certain taxes, but the Magna Carta is regarded by history as the first document that established the foundations of due process[4] and made the king subordinate to the law of the land.  Under the Magna Carta, if the King wished to enact a tax, he must obtain permission from the nobles.  As noted previously, the duties of a vassal were not only to provide military aid and collect royal taxes, but to also provide private counsel when called upon, and the King would often summon the nobles for private counsel.  After the Magna Carta was promulgated, the King began to summon his council with more frequency, mostly for permission to raise or levy taxes, yet not to consult on any other matters.  This eventually infuriated the nobles, as they did not approve of being summoned only for permission to tax without having any say on other matters.  Therefore, in 1258, the nobles imposed on King Henry III the Provisions of Oxford, which forced the King to consult with his nobles on government issues to receive the funding the King was seeking.  This led to the creation of a King’s Council, called Parliament, which would convene three times per year and put England on the road to a constitutional monarchy. 

In manners of government and law, William the Conqueror would maintain parts of the Anglo-Saxon administrative system but would centralize all judicial authority into one judicial system located in Westminster.   The Normans also converted the Anglo-Saxon writ system to assist with legal procedure that would allow the royal courts to rapidly process lawsuits.  Standardized writs were established for specific categories that depended on a particular wrong, which, in turn, triggered a particular procedure.   The aggrieved party would simply apply to the court for the writ most relevant to his complaint, and the writ would be sent to the wrongdoer, which ordered him under royal authority to attend a royal court to answer for his actions. The development was part of the establishment of a Court of Common Pleas, which dealt with common complaints, such as property damage or land disputes.  As the system evolved, a writ became necessary to commence a legal action in a royal court.

At first, new writs were drafted to fit each new situation, although in practice wording from previously issued writs were used rather than re-inventing the wording of a new legal document.[5] The problem with this approach was that a plaintiff's rights and available forms of action at his disposal would be defined, and in most cases limited, by the narrow variety of writs available. Therefore, the power to create new writs was analogous to creating new rights, a form of extra-parliamentary legislation. Moreover, a writ was also a legal means of removing the dispute from the jurisdiction of the local court, often controlled by a noble, such as a duke or count, and instead having it heard by the King's judges. The nobility therefore viewed the writ system as a loss of power.  The above-mentioned Provisions of Oxford, signed by the King in 1258, forbade the creation of new writs without the prior sanction of Parliament. Thereafter, any new writ required express approval from Parliament, causing the writ system to remain relatively static.

As we may recall, William the Conqueror replaced the Anglo-Saxon government with the feudalistic system and divided and distributed the English territory into duchies (headed by a Duke), which in turn, were divided into counties.  Each county was headed by a Count and had its own local laws, customs, and court system.  Although, in theory, the Count, as the King's vassal, owed a duty of loyalty to the King, which included the collection and transfer of taxes from county residents to the King's Court, this wasn't usually the case in practice.  Instead, each Count would keep these taxes and would also dispense justice personally without any royal interference, thus collecting and keeping all fines imposed on all wrongdoers under his jurisdiction.

English (Norman) kings therefore sought to wrest control from nobles through the establishment of the writ system, which would apply a single rule of law throughout the kingdom.  This would eventually become known as the “common” law—one that was shared by all courts throughout the land and that would replace local courts and laws.  Kings would then appoint royal judges, who would travel from town to town, on “circuit,”[6] where they would oversee and rule on civil and criminal cases.  These common-law judges relied on previous decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. These decisions would then be collected and recorded in court records.  If a written statute did exist and govern a dispute, the interpretation of that statute by a common-law judge was still the determining factor and what would be recorded.  Accordingly, under the doctrine of stare decisis, common-law judges were (and are still) required to adhere to previously decided cases, or precedents, where the facts were substantially the same.

Given the limited number of writs available and, after 1258, the severe restrictions placed on the adoption of new writs, the writ system would eventually become so rigid that often times an appropriate remedy was unavailable.  In this case, a direct appeal was made to the King’s court, or Chancery, which acted as a kind of appeals court.  This is the foundation of the Court of Equity, as the Chancery, overseen by the King’s Chancellor, usually a clergyman, would apply principles of fairness and justice, and they usually referred to a certain injury that could not be compensated through money.  Examples of equitable remedies that continue to apply today are specific performance, rescission, and injunctions.  Specific performance refers to the court ordering the breaching party of a contract to perform[7] the contract.  Specific performance refers to the court ordering the breaching party of a contract to perform the contract. This usually occurs when the object of the contract is unique, such as a house.  Rescission refers to the cancellation of a contract and is usually granted when one party acts in bad faith or misrepresents himself in a contract, i.e., lies about his ability to perform the contract or any other representations that induced the other party to enter into the contract.  An example here is when a party to a legal services agreement claims to be a licensed attorney when he or she is not.  Injunctions refer to a court order compelling someone to carry out or refrain from carrying out a specific act.  A common contemporary example of an injunction is a restraining order, which usually is a court order forbidding the subject of the order from going within a certain distance of a person or area. 

The writ system also survives in U.S. law.  The most famous writ is that of habeas corpus (Latin for “to have the body”), which is filed against unlawful detention and was included in the Assize of Clarendon issued by Henry II in 1166—roughly 50 years before the Magna Carta.   Prior to the development of habeas corpus, a person could be arrested for any crime, including civil (civil debt, for example), without being told the nature of his crime, and he could be imprisoned indefinitely without appearing before a judge. 

To sum up, the power English monarchs enjoyed after William the Conqueror defeated the Anglo-Saxons would lead to consolidated authority throughout the English kingdom that monarchs on mainland Europe did not have.  This led to the development of a centralized government, the feudal system, and the birth of common law, where royal judges dispensed law based on their interpretation of statutes or prior judicial decisions that would apply to the entire kingdom, rather than resorting to local law.  It also led to the development of courts of equity—a sort of appeals court made directly to the King through the Chancery, which were based on justice and fairness.   

[1] William would rename them counties, although the shire persists.

[2] Thus, the English aristocracy was French speaking while the rest of the population spoke English.

[3] Given that the English aristocracy were also French nobles, thus having land possessions in both countries, it became exceedingly difficult for the nobles to protect both, and in most cases had to choose which lands to protect.

[4] Article 39 states: “No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgment of his peers, or by the law of the land.”

[5] This practice of including “boilerplate” text is still common today.

[6] This circuit is also referred to as an “eyre.”

[7] Performance is a technical term used in contract law to denote the fulfillment of obligations under a validly executed contract.  In Spanish, this is referred to as Cumplimiento, which many translators erroneously translate as Compliance.