of Eike von Repgow will seem far less familiar to an Englishman
than the so-called Establishments of St Louis. This was the
outcome of a slow process which fills more than a century (1066–1189),
and was in a great measure due to the reforming energy
of Henry II., the French prince who, in addition to England,
ruled a good half of France. William the Conqueror seems to
have intended to govern Englishmen by English law. After
the tyranny of Rufus, Henry I. promised a restoration of King
Edward’s law: that is, the law of the Confessor’s time (Lagam
Eadwardi regis vobis reddo). Various attempts were then made,
The Nor-man age.
mostly, so it would seem, by men of French birth,
to state in a modern and practicable form the laga
Eadwardi which was thus restored. The result of
their labours is an intricate group of legal tracts which has been
explored of late years by Dr Liebermann. The best of these
has long been known as the Leges Henrici Primi, and aspires
to be a comprehensive law-book. Its author, though he had
some foreign sources at his command, such as the Lex Ribuaria
and an epitome of the Breviary of Alaric, took the main part of
his matter from the code of Canute and the older English dooms.
Neither the Conqueror nor either of his sons had issued many
ordinances: the invading Normans had little, if any, written
law to bring with them, and had invaded a country where kings
had been lawgivers. Moreover, there was much in the English
system that the Conqueror was keenly interested in retaining—especially
an elaborate method of taxing the land and its holders.
The greatest product of Norman government, the grandest feat
of government that the world had seen for a long time past,
the compilation of Domesday Book, was a conservative effort,
an attempt to fix upon every landholder, French or English,
the amount of geld that was due from his predecessor in title.
Himself the rebellious vassal of the French king, the duke of
the Normans, who had become king of the English, knew much
of disruptive feudalism, and had no mind to see England that
other France which it had threatened to become in the days of
his pious but incompetent cousin. The sheriffs, though called
vice-comites, were to be the king’s officers; the shire-moots might
be called county courts, but were not to be the courts of counts.
Much that was sound and royal in English public law was to be
preserved if William could preserve it.
The gulf that divides the so-called Leges Henrici (c. 1115) from the text-book ascribed to Ranulf Glanvill (c. 1188) seems at first sight very wide. The one represents a not easily imaginable chaos and clash of old rules and new; it represents also a stage in the development of Royal justice. feudalism which in other countries is represented chiefly by a significant silence. The other is an orderly, rational book, which through all the subsequent centuries will be readily understood by English lawyers. Making no attempt to tell us what goes on in the local courts, its author, who may be Henry II.’s chief justiciar, Ranulf Glanvill, or may be Glanvill’s nephew, Hubert Walter, fixes our attention on a novel element which is beginning to subdue all else to its powerful operation. He speaks to us of the justice that is done by the king’s own court. Henry II. had opened the doors of his French-speaking court to the mass of his subjects. Judges chosen for their ability were to sit there, term after term; judges were to travel in circuits through the land, and in many cases the procedure by way of “an inquest of the country,” which the Norman kings had used for the ascertainment of their fiscal rights, was to be at the disposal of ordinary litigants. All this had been done in a piecemeal, experimental fashion by ordinances that were known as “assizes.” There had not been, and was not to be, any enunciation of a general principle inviting all who were wronged to bring in their own words their complaints to the king’s audience. The general prevalence of feudal justice, and of the world-old methods of supernatural probation (ordeals, battle, oaths sworn with oath-helpers), was to be theoretically respected; but in exceptional cases, which would soon begin to devour the rule, a royal remedy was to be open to any one who could frame his case within the compass of some carefully-worded and prescript formula. With allusion to a remote stage in the history of Roman law, a stage of which Henry’s advisers can have known little or nothing, we may say that a “formulary system” is established which will preside over English law until modern times. Certain actions, each with a name of its own, are open to litigants. Each has its own formula set forth in its original (or, as we might say, originating) writ; each has its own procedure and its appropriate mode of trial. The litigant chooses his writ, his action, and must stand or fall by his choice. Thus a book about royal justice tends to become, and Glanvill’s book already is, a commentary on original writs.
The precipitation of English law in so coherent a form as that which it has assumed in Glanvill’s book is not to be explained without reference to the revival of Roman jurisprudence in Italy. Out of a school of Lombard lawyers at Pavia had come Lanfranc the Conqueror’s adviser, and the Lombardists had already been studying Justinian’s Institutes. Then at length the Digest came by its rights. About the year 1100 Irnerius was teaching at Bologna, and from all parts of the West men were eagerly flocking to hear the new gospel of civilization. About the year 1149 Vacarius was teaching Roman law in England. The rest of a long life he spent here, and faculties of Roman and Canon law took shape in the nascent university of Oxford. Whatever might be the fate of Roman law in England, there could be no doubt that the Canon law, which was crystallizing in the Decretum Gratiani (c. 1139) and in the decretals of Alexander III., would be the law of the English ecclesiastical tribunals. The great quarrel between Henry II. and Thomas of Canterbury brought this system into collision with the temporal law of England, and the king’s ministers must have seen that they had much to learn from the methodic enemy. Some of them were able men who became the justices of Henry’s court, and bishops to boot. The luminous Dialogue of the Exchequer (c. 1179), which expounds the English fiscal system, came from the treasurer, Richard Fitz Nigel, who became bishop of London; and the treatise on the laws of England came perhaps from Glanvill, perhaps from Hubert Walter, who was to be both primate and chief justiciar. There was healthy emulation of the work that was being done by Italian jurists, but no meek acceptance of foreign results.
A great constructive era had opened, and its outcome was a large and noble book. The author was Henry of Bratton (his name has been corrupted into Bracton), who died in 1268 after having been for many years one of Henry III.’s justices. The model for its form was the treatise of Azo Bracton. of Bologna (“master of all the masters of the laws,” an Englishman called him), and thence were taken many of the generalities of jurisprudence: maxims that might be regarded as of universal and natural validity. But the true core of the work was the practice of an English court which had yearly been extending its operations in many directions. For half a century past diligent record had been kept on parchment of all that this court had done, and from its rolls Bracton cited numerous decisions. He cited them as precedents, paying special heed to the judgments of two judges who were already dead, Martin Pateshull and William Raleigh. For this purpose he compiled a large Note Book, which was discovered by Prof. Vinogradoff in the British Museum in 1884. Thus at a very early time English “common law” shows a tendency to become what it afterwards definitely became, namely, “case law.” The term “common law” was being taken over from the canonists by English lawyers, who used it to distinguish the general law of the land from local customs, royal prerogatives, and in short from all that was exceptional or special. Since statutes and ordinances were still rarities, all expressly enacted laws were also excluded from the English lawyers’ notion of “the common law.” The Great Charter (1215) had taken the form of a grant of “liberties and privileges,” comparable to the grants that the king made to individual men and favoured towns. None the less, it was in that age no small body of enacted law, and, owing to its importance and solemnity, it was in after ages regarded as the first article of a statute book. There it was followed by the “provisions” issued at Merton in 1236 and by those issued at
