The History of English Law before the Time of Edward I. Frederic William Maitland

Edward II.’s reign it has fairly won the statutes roll,¹⁵ and is fast gaining a mastery over the parliament rolls. For about two centuries, from the reign of Edward I. to the reign of Richard III., it is the usual language of the enacted law. Late in the fourteenth century English begins to make an insidious attack. Petitions to parliament are sometimes presented in English, and the English petition is sometimes put upon the roll without being translated. However, the middle ages are just at an end before the records of the En glish legislature are written mainly in English, and to this day, as all know, what a lawyer must regard as the most solemn of all our formulas is French— La reine le veult.¹⁶

[p.65]French law-books. Again, in the thirteenth century French slowly supplanted Latin as the literary language of the law. It is very possible that the learned Bracton thought about law in Latin; he wrote in Latin, and the matter that he was using, whether he took it from the Summa Azonis or from the plea rolls of the king’s court, was written in Latin. But the need for French text-books was already felt, and before the end of the century this need was being met by the book that we call Britton, by other tracts,¹⁷ and by those reports of decided cases which we know as the Year Books. Thenceforward French reigns supreme over such legal literature as there is. We must wait for the last half of the fifteenth century if we would see English law written about in the English tongue, for the sixteenth if we would read a technical law-book that was written in English.¹⁸

Language and law.This digression, which has taken us far away from the days of the Norman Conquest, may be pardoned. Among the most momentous and permanent effects of that great event was its effect on the language of English lawyers, for language is no mere instrument which we can control at will; it controls us. It is not a small thing that a law-book produced in the England of the thirteenth century will look very like some statement of a French coutume and utterly unlike the Sachsen-spiegel, nor is it a small thing that in much later days such foreign influences as will touch our English law will always be much rather French than German. But we have introduced in this place what must have been said either here or elsewhere about our legal language, because we may learn from it that a concurrence of many causes was requisite to produce some of those [p.66] effects which are usually ascribed to the simple fact that the Normans conquered England.¹⁹

Preservation of Old English law.We may safely say that William did not intend to sweep away English law and to put Norman law in its stead. On the contrary, he decreed that all men were to have and hold the law of King Edward—that is to say, the Old English law—but with certain additions which he, William, had made to it.²⁰ So far as we know, he expressly legislated about very few matters.The Conqueror’s legislation. He forbad the bishops and archdeacons to hold in the hundred courts pleas touching ecclesiastical discipline; such pleas were for the future to be judged according to the canons and not according to the law of the hundred; the lay power was to aid the justice of the church; but without his leave, no canons were to be enacted and none of his barons or ministers excommunicated.²¹ He declared that his peace comprehended all men both English and Normans.²² He required from every freeman an oath of fealty.²³ He established a special protection for the lives of the Frenchmen; if the slayer of a Frenchman was not produced, a heavy fine fell on the hundred in which he was slain. He declared that this special protection did not extend to those Frenchmen who had settled in England during the Confessor’s reign.²⁴ He defined the procedural rules which were to prevail if a Frenchman accused an Englishman, or an Englishman a Frenchman.²⁵ He decreed that the county and hundred courts should meet as of old. He decreed that every freeman should have pledges bound to produce him in court.²⁶ He forbad that cattle should be sold except in the towns and [p.67] before three witnesses. He forbad that any man should be sold out of the country. He substituted mutilation for capital punishment.²⁷ This may not be an exhaustive list of the laws that he published, nor can we be certain that in any case his very words have come down to us; but we have good reason to believe that in the way of express legislation he did these things and did little more.

Character of William’s laws.In the long run by far the most important of these rules will be that which secures a place in England for the canonical jurisprudence. And here we have a good instance of those results which flow from the Norman Conquest—a concrete conquest of England by a certain champion of Roman orthodoxy—which are in no wise the natural outcome of the mere fact that Englishmen were subju-gated by Normans. For the rest, there are some rules which might have come from a king of the old race, could such a king have been as strong a ruler as William was. He would have had many precedents for attempting to prevent the transfer of stolen goods by prohibiting secret sales.²⁸ It was old, if disregarded, law that men were not to be sold over sea.²⁹ It was law of Cnut’s day that every freeman should be in pledge.³⁰ A wave of religious sentiment had set against capital punishment.³¹ Whether the king could exact an oath of fealty from all men, even from the men of his men, was a question of power rather than of right.³² Only two rules drew a distinction between French and English. We may doubt, however, whether the murder fine had not its origin in the simple principle that the lives of the Normans were to be as well protected in England as the lives of strangers were in Normandy; at any rate the device of making a district pay if a stranger was murdered in it and the murderer was not produced in court, was not foreign to Frankish nor yet to Scandinavian law. We are also told, though the tale comes from no good source, that Cnut had protected his Danes by a fine similar to that which was now to protect the Normans.³³ Again, the procedure in criminal cases is by no means unfavourable [p.68] to the men of the vanquished race. The Englishman whom a Frenchman accuses has the choice between battle and ordeal. The Englishman who brings an accusation can, if he pleases, compel his French adversary to join battle; otherwise the Frenchman will be able to swear away the charge with oath-helpers “according to Norman law.” Certainly we cannot say that the legislator here shows a marked partiality for one class of his subjects. In this matter mere equality would not be equity, for English law has not known the judicial combat, and perhaps the other ordeals have not been much used in Normandy. As it is, the Englishman, whether he be accuser or accused, can always insist on a wager of battle if he pleases; he is the Norman’s peer.³⁴

Personal or national law.In different ages and circumstances the pride of a conquering race will show itself in different forms. Now-a-days the victor may regard the conflict as one between civilization and barbarism, or between a high and a low morality, and force his laws upon the vanquished as the best, or the only reasonable laws. Or again, he may deliberately set himself to destroy the nationality of his new subjects, to make them forget their old language and their old laws, because these endanger his supremacy. We see something of this kind when Edward I. thrusts the English laws upon Wales. The [p.69] Welsh laws are barbarous, barely Christian, and Welshmen must be made into Englishmen.³⁵ In older and less politic days all will be otherwise. The conquerors will show their contempt for the conquered by allowing such of them as are not enslaved to live under their old law, which has become a badge of inferiority. The law of the tribe is the birthright of the men of the tribe, and aliens can have no part or lot in it. Perhaps we should be wrong were we to attribute any large measure of either of these sentiments to the generality of the Norman invaders; but probably they stood nearer to the old and tribal than to the modern and political point of view. A scheme of “personal laws” would have seemed to them a natural outcome of the conquest. The Norman will proudly retain his Norman law and leave English law to the English. We have seen that in matters of procedure William himself favoured some such scheme, and to this idea of personal law may be due what is apt to look like an act of gross iniquity. Roger of Breteuil and Waltheof conspired against William; Waltheof was condemned to death; Roger was punished “according to the