History of England 1-6

But acts of expediency sometimes have unintended consequences. The imposition of uniform royal justice over the country laid the conditions for the development of common law. National law took precedence over local custom. When law became uniform, it could indeed eventually become ‘common’ to all. Phrases were employed that emphasized this theory of ius commune; ‘as the custom is in England’ or ‘according to the custom of the land’ became standard formulas. Men could reduce it to order, and to the claims of precedent; it could be codified and standardized. One of the most important legal works in English history, Ranulph de Glanville’s On the Laws and Customs of England, was composed in the reign of Henry II. It is no accident that ‘legal memory’ was deemed to have begun at the time of the accession of Richard I, the king’s oldest surviving son, in 1189. Henry was acting out of self-interest but his measures, more than any other, promoted obedience to the law and assured the coherent administration of justice. He had no interest in reform, and no scheme for it. He acted out of private and selfish interests only, and was motivated solely by the force of circumstances. He did not have any idea where his actions might lead, except to the extent that they afforded him more and more money. These are the foundations of the mighty edifice of English law. Henry had stumbled upon a system that has endured ever since.

One other unanticipated result issued from the new legal procedures. One of the functions of the judges was to rule on disputes over property. Had anyone been violently dispossessed of his or her land? This was a common problem of the twelfth century where lords, great or small, were always trying to increase their dominion. The judges were inclined to call together twelve local men who would be able to tender advice on the matter. The origin of the English jury is still in dispute, with some authorities placing it within the Anglo-Saxon period, but in the twelfth century we witness at least its systematic use. Within fifty years juries were also employed in criminal cases. Trial by jury replaced trial by battle and the ordeal. The parties involved in these disputes were summoned to the court by writs, which from this period took on a standard form. Writs cost sixpence. The legal system of the country was being created by haphazard and unpredictable means.

Yet all things move together. The creation of royal law, otherwise known as national law, called for a group of skilled adherents to interpret and amend the principles of legislation. There had been no professional lawyers in the eleventh century, and the judges were simply the servants of the king. In the reign of Henry II that happy vacancy ended forever. By the end of the twelfth century the ‘learned laws’ were being taught at Oxford. Around the law courts of Westminster there clustered ad hoc ‘schools’ of law. A group known as ‘men of law’ soon emerged. They organized themselves into a profession of various roles and grades. They ate and drank together, in the various hostels or inns that were at a later date transformed into Lincoln’s Inn, Gray’s Inn, and the others.

One of the paradoxes of medieval society lies in the presence of extreme violence and disorder alongside an appetite for great formality and hierarchy; England was in many respects a lawless society, but it was also a litigious one. The people loved law, just as they disregarded it; they could not get enough of it. It was consoling. It represented authority and tradition, even as they were being flouted. It was like listening to the king’s voice even though, if you had come to Westminster Hall on a law day, you would have found yourself amid a babble of voices.

‘Furthermore I marvel that you have not come to the point.’

‘The point, sir, is like a quintain. Hard to hit.’

‘Do not argue with me about the statute. I was the one who made it.’

‘It is lex talionis! Like for like!’

‘A great friend is Aristotle. But a greater friend is truth.’

The floor of the hall was covered with rushes containing sweet herbs, to curb the odours of the people and of the prisoners. The judges carried with them a ball of linen soaked in aniseed and camomile.

The King’s Bench, the Court of Common Pleas and the Court of the Exchequer had their own panels of judges; the special pleaders were known as sergeants and can be seen as the ancestors of the barrister. It is only to be expected that, in time, the sergeants would be promoted to judges. The professionalization of the law thereby became complete. Pleadings became more technical, and tended to rely upon precedent. We may talk of legalism rather than law. The judges wore scarlet robes and caps of gold silk. The sergeants wore gowns with vertical stripes of mulberry and blue, together with round caps of white silk.