A Concise History of the Common Law. Theodore F. T. Plucknett

officially compiled documents being beyond question seems to have spread to the rolls of the Exchequer, and thence to the rolls of the courts of law. If this conjecture is true, then “Records” must be regarded as financial in origin, and only later becoming judicial.³

Another effect of Domesday Book was to assert the chain of feudal relationships and to assure the overlordship of the Crown. Thus the title of every piece of land in England could be expressed in the formula that A holds it of his feudal lord B, who holds of C, who holds of —— the King. This insistence of the Norman and succeeding kings that they were the undisputed lords, direct or indirect, of every piece of land in the country is of the gravest importance, for it provided a sure foundation for the growth in later times of the common law. For this and many other reasons too technical to mention here, it has been said that “If English history is to be understood, the law of Domesday Book must be mastered”.¹ This opportunity of systematising the land situation enabled the Conqueror to make England the most perfectly organised feudal state in Europe, and in this sense we may say that we are indebted to him for the feudal system. But he refused to allow the great barons whose tenure intervened between him and their sub-tenants to turn their position to political advantage, and one of his last acts was to assemble a great meeting (1086) at Salisbury where came all his counsellors “and all the land-owning men of property that there were all over England, whosesoever men they were, and all bowed down to him and became his men, and swore oaths of fealty to him that they would be faithful to him against all men”²—even against their immediate lords. In this way William tried to prevent the feudal anarchy and private war against which he had struggled for so many years in Normandy.³

      His work, then, was pre-eminently that of systematisation. A few great reforms there were, but his greatest contribution was the Norman spirit of clever administration and orderly government, and his own stern enforcement of royal rights. Upon this basis was the common law to be built in later days. In other respects he was content to continue the old English laws and customs, expressing his policy in a brief but stately charter which is still preserved by the City of London:⁴

      “King William greets in friendly wise William the bishop and Gosfrith the portreeve, and all the burgesses in London, both French and English. I let you wit that I will that you two be worthy of all the laws that you were worthy of in King Edward’s day. And I will that every child be his father’s heir after his father’s day,⁵ and I will not endure that any man offer any wrong to you. God keep you.”

Of William II (Rufus) there is little to say except that he rashly provoked a feud with the Church, in consequence of which Archbishop Anselm suffered years of exile and “by his firmness set up a new standard of independence for the English clergy, and made the opening move in the struggle between Church and State in England”.¹ At the same time, the efficient central administration was employed under the direction of the king’s principal minister, Ranulf Flambard, in converting the incidents of feudal tenure into engines of financial oppression.

CHURCH AND STATE

      With the reign of Henry I (1100-1135) we come to a more important period of legal history. His first act was very significant. Just as the Conqueror had made the short promise of good government to London which we have just quoted, so his son Henry I issued a formal Charter in 1100 promising to stop the oppressive practices which his brother Rufus had introduced; then he chose as his queen Edith, who was a representative of the old English royal house, and so conciliated the English. His principal trouble (apart from a baronial revolt which was soon quelled) came from the Church which was growing anxious at the rapid rise of powerful monarchies which were apt to use the Church for political ends. Soon the issue became definite and Europe-wide in the form of the “Investiture Contest”. The Conqueror had compelled the cathedrals to elect his nominees as bishops and had himself delivered to them the emblems of spiritual as well as of temporal authority. Gregory VII as early as 1075 prohibited lay investiture, holding that the Church was independent of the State, and that no temporal ruler could confer ecclesiastical authority. A long struggle followed which on the continent took the form of the spectacular struggle between the Empire and the papacy. In England Henry I and Archbishop Anselm were subject to the moderating influence of the great canon lawyer Ivo of Chartres who devised a compromise in 1107; the King resigned his claim to invest bishops with the ring and staff (the emblems of their spiritual authority), while Anselm agreed that cathedral chapters should come to the King’s chapel and elect bishops in his presence—thus leaving room for a reasonable amount of royal influence. This wise settlement was extended to all Europe only after much bitter strife in 1122.

      The conflict is one of the central facts in mediaeval history, for it shows a clear-cut issue upon which a saintly man of Anselm’s type would unhesitatingly decide that he had higher duties than those which he owed to the Crown. The Concordat of Worms of 1122 did not permanently end the dispute, which soon revived upon slightly different ground; indeed, in its most general sense the quarrel is likely to last as long as government itself. It has had important results upon the political theory of the State, some of the greatest minds of the middle ages having devoted their powers to the examination of the nature of kingship, the authority of law, and the limits which ought to be put upon the power of temporal rulers. Jurisprudence to-day bears the traces of these great events, in the course of which the State was criticised in terms of the highest ideal of government which then existed, that of the universal Church.¹

HENRY I’s REFORMS

      The rest of the reign is occupied with the peaceful activities of the Justiciar, Roger, Bishop of Salisbury, a Norman from Caen, who like so many of his race had something of the efficiency expert in his blood. Official tradition long respected him for his organisation of the Exchequer on strict business lines, and to him we owe the series of “Great Rolls of the Pipe”. The earliest in existence is dated 1130 and contains important legal as well as financial information. Some of the earlier rolls must be lost; but with a few gaps there is an almost complete series of Pipe Rolls from 1156 down to 1832—a remarkable sign of the permanence of Roger’s work. In this reign, therefore, we may place the elaboration of an efficient governmental organisation at Westminster. In local government Henry I was equally active; eleven untrustworthy sheriffs were dismissed in 1129; justiciars were sent on circuit to look after the pleas of the Crown (and they soon usurped for their master immense jurisdiction by asserting that any matter which concerned the King’s peace could be treated as a plea of the Crown), while it is clear that the Norman sheriffs were still administering in the county what was essentially Anglo-Saxon law, for we have some curious treatises (written between 1113 and 1118) which are attempts to state that old law in language that the Normans could understand.² This in fact is the justification for the statement we have already made to the effect that the period of Anglo-Saxon law extended later than the Norman Conquest, and at least as late as the year 1100 or thereabouts. We therefore see that in the reign of Henry I the law was substantially Anglo-Saxon and administered by the sheriffs locally according to ancient custom (which was certainly not the same all over the country). As yet there was very little that could be called “common law”. So far there was only a great administrative machine well on the way towards a complete domination of the realm. From this great machine there will develop the future common law.¹ Only in Sicily was such efficient administration to be found, and there too it was the work of Norman invaders.²

      Henry’s death was a great loss to the nation:

      “then there was tribulation soon in the land, for every man that could forthwith robbed another.... A good man he was and there was great awe of him. No man durst misdo against another in his time. He made peace for man and beast. Whoso bare his burden of gold and silver, no man durst say him aught but good.”³

      The reign of King Stephen (1135-1154) is frequently called “the Anarchy”, so great were the disorders which filled it attendant upon the disputed title to the Crown. The machine which Henry I had perfected needed a firm hand to run it, and Stephen was content to let things drift. Art and letters, indeed, flourished, and Vacarius came to Oxford to teach Roman law and to write