Legal History


These pages provide a brief overview of Anglo-American legal history including the nature of Anglo-Saxon folk law with its ritual oath swearing, blood feuds and ordeals, the development of royal justice and the debate over the causes of legal centrism, the origins of the common law in the writ system and some Massachusetts legal history. Please e-mail us your comments and contributions.

Anglo-Saxon folk law

In 1818, the defendant in a rape-murder trial threw down a gauntlet and announced he would defend the case "by my body" to a startled Court of King's Bench (Ashton v. Thornton (1818) 1 B. & Ald. 405). The defendant had opted for an obsolete trial by battle that remained the law of England until it was repealed by parliament the same year.

Trial by battle was the legal successor of the blood feud which was used to settle disputes by the Anglo-Saxons before the Norman conquest of England in 1066. Under this arrangement people organized themselves into groups called households, swearing oaths of mutual protection. If someone was injured or property was stolen, all the members of his household would take an active part against the violator's household. The result could be violent blood feuds and vendettas. However, since the blood feud could be very unpleasant and destructive the parties often met to settle the dispute before a special public assembly called a moot. Hostages could be exchanged to create trust and an atmosphere conducive to settlement negotiations. Social scientists speculate that the blood feud decreased the level of violence and fostered peaceful dispute resolution because the consequences of any one transgression were so severe.

The blood feud was gradually supplanted by other forms of legal settlement and judgment.

Oath Swearing

"So I hold it as he held it, who held it saleable, and I will own it-- and never resign it--neither plot nor plough land--nor turf nor toft--nor furrow nor foot length--nor land nor leasow--nor fresh nor marsh--nor rough ground nor room--nor wold nor fold--land nor strand--wod nor water."

Parties to a dispute could conduct a trial by taking ritual oaths. This process was called compurgation, because one party would "purge" himself of the charges by taking the oath. The oaths were taken seriously because to swear a false oath was perjury, a false promise to god. The oaths had to be made without making any mistakes, "without slip or trip." The oaths like the one above were poetic and alliterative and gave the process a formality and ritual that impressed the parties with its importance. The party swearing the oath needed the help of supporting witnesses or oath helpers who swore that his oath was unperjured. The parties would swear oaths at each other until someone made a mistake.

Compurgation was used regularly in England in cases involving debts until the 1600's. The defendant would swear that he didn't owe the money and needed eleven oath helpers to testify along with him. The practice that originated when the eleven people were local and had first hand knowledge and knew the oath taker eventually became a farce and the courts had a professional class of oath helpers lingering about to provide assistance. A professional oath taker, to replace the party himself would wear a piece of straw in his shoe signifying his status, giving rise to the term "straw man."

The Ordeal

The ordeal was the principal form of legal proof throughout England and Europe until it came under attack by the church and the pope in 1215. The ordeal could be of fire or water. In an ordeal by fire the accused took a red hot iron bar in his hand for a specified period of time or walked barefoot over hot coals. The burn was bandaged for several days and then examined by the legal authorities. The accused could be exonerated if the wound healed "properly."

The ordeal by water consisted of throwing the accused in and observing whether he sank or floated. If he floated he would be found guilty because the water had refused to accept him. If the accused sank the water accepted them and they were exonerated (and hopefully rescued before they drowned).

Both of these primitive methods of proof "worked" for hundreds of years. Modern scholars have suggested that the reason the ordeal functioned is because the interpretation of the data was subjective and open to consensus. A burn may or may not have healed properly or a person may or may not have floated depending on other objective facts such as the strength of the evidence against the accused. Non-literate people could thus resolve issues by presenting the issue to God's judgment instead of conducting blood feuds over disputed facts. Obviously this wasn't an ideal system and was gradually replaced by more formal rules that required the evidence and witnesses be evaluated by a judge or jury.

The Centralization of legal rules

The origins of our modern legal system begin in England when the king and the state began to monopolize dispute resolution and rule promulgation. Legal historians call this process legal centrism. Legal centrism is basically the situation that arises when legal authority is concentrated in the hands of the state. There is an ongoing debate among legal scholars (such as Stroud Milsom and Robert Palmer, see bibliography) about the cause of legal centrism in England. Scholars like Palmer claim that centrism was a result of the king's conscious efforts to gain control of his subjects and raise revenue. Milsom's and other historians see the monopolization process as a gradual replacement that cannot be solely attributed to government policy, but rather was the result of people going to royal courts because these provided better services.

The administrative state was brought to England in 1066 by William the Conqueror who imposed a royal superstructure upon a number of smaller legal systems: the customary law of the Anglo-Saxons discussed above, the hundred courts (local courts), feudal courts and the church courts. Initially the royal authority merely established a certain fine that was due to the king every time a case was settled by one of these local courts.

Because the local courts and the parties weren't always anxious to pay the king his fine, the king developed the eyre system. The eyre system imposed royal power directly by a system of traveling justices. The eyre inquired about money's owed to the king, unexplained deaths and handled ordinary disputes between people (for a price). Initially this system didn't go over very well and the coming of the eyre struck fear in the hearts of the population. The eyre imposed heavy fines and brought a reign of terror to some communities. Many people fled or alternatively killed the eyre. However, eventually the eyre became a regular feature of English life and legal disputes began to be handled by the king. Instead of going to a local court people now had the option of seeking justice from the king directly when the eyre came to town.

From the eyre system emerged the corem rege-- the King's bench-- a regular court of law; the exchequer which dealt with legal disputes arising out of royal revenue; and the court of common pleas (which were later to be held at a fixed place). Royal legal power was also greatly strengthened under Henry II (1155-1183). In his famous battle with Beckett the issue was whether the church was to have exclusive jurisdiction over the clergy. The compromise created a wedge for royal authority to enter into church matters.

The Writ System

The royal legal system revolved around a system of writs: a royal order which authorized a court to hear a case and instructed a sheriff to force the accused to appear. The writ, or order had a special name and stated certain facts. For example to recover personal property the plaintiff would get a writ of Replevin. One of the most important writs was the writ of Right in which the plaintiff sought title to property via a claim of hereditary descent. As the basis of the economy and social structure land disputes were key issues in medieval England and this writ is secured in Magna Carta.

The writ read: The King to the sheriff, greeting. Command [praecipe=Latin for right] N. that justly and without delay he render to R. one hide [about 120 acres] of land in such a vill [a township], whereof the said R. complains that the said N. deforces [wrongfully take possession of] him. And if he does not do this, summon him by good summoners that he be before me or my justices on the morrow of the second Sunday after Easter at such a place to show why he did not do it. And have there the summoners and this writ.

Originally, writs were reserved for special cases because most cases were heard in the eyre. However, the trend became to create new writs so that the royal courts could hear more cases. In 1189 there were about 40 writs, by the time of Edward I (1272-1307) there were more than 400. In the 1300's the number of writs became fixed and if a writ didn't fit the facts of a particular case it would be thrown out of court. Thus the maxim "no writ, no remedy." In order to find out if you had a case you needed to consult the register of writs which listed all the writs available.

What happened was really a historical accident, writs were originally very rigid because the royal court could only hear certain types of cases, the bulk of the disputes were settled in local courts. However, when the royal courts became the places where every day disputes were heard the old writ system was still rigidly in place. As a result many common legal problems were cut off from the legal system. This of course didn't deter the ingenious Englishman who then proceeded to invent a complex system of legal fictions to get his case into court. More to come.

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