english common law

english common law - John Tomberlin History 153 Professor...

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Unformatted text preview: John Tomberlin History 153 Professor Piotr Gorecki Early English common law was created in such a way as to lead to an efficient community. To do this the common law, as issued in The Laws of Edward the Confessor, attempted to utilize society as an organized machine. Laws attempted to keep the people peaceful as this would lead to more productivity and less future efforts at peace; these laws were created not to satisfy some innate need for justice yearning at the hearts of the English , but to ensure society was managed efficiently. When the Normans gained control of England in 1066 they found themselves in control of a large group of varying districts kept together by their own distinct customs. William the Conqueror, the new king, called forth great men from all areas of England to cement a set of laws for his kingdom. In cementing new laws William showed his adeptness at ruling by allowing the English to largely keep those original laws held sacred to them#, this ensured they would understand what was acceptable and could be held accountable. Edward, promulgator of laws recorded in The Laws of Edward the Confessor, continued in this tradition by following guidelines of pre-Norman English common law as he sought to efficiently govern his people. A key power that Edward would find it necessary to work with was the Holy Church. Not only did the Holy Church control a great deal of land, which it often leased and profited on, but the Holy Church legitimized the rule of the king and pacified the people. Edward would have realized it was far more efficient to work with the church that to force his sole sovereignty and so in his laws there are many stipulations not only specifically addressing the Holy Churchs special consideration in secular courts but also its power to have specific governance over the law in areas of ecclesiastical importance. The Holy Church provided an option outside of secular law for those who committed nearly any crime, by fleeing to the courtyard of a church or the home of a priest on church property one could escape pursuit by all entities other than the bishop and his officials.# This separation of ecclesiastical proceedings and secular proceedings did have limits, were a felon to become known to make frequent use of the church in such a way this protection would be taken from him. The common law was not seen as such an inflexible set of rules that guilty parties could hide behind it. In cases where there was not due respect paid to the bishop, whether through repeatedly violating his terms of mercy or through blatant disregard for his justice, the case would be turned over to the king. These two separated branches of justice available allowed efficient outcomes as the church would focus more on holding the guilty to right whatever wrongs they had done while the king would punish more strictly, though both branches did charge for their justice. Outside of ecclesiastical law, secular law was responsible for creating a system through which to run the country. The Laws of Edward the Confessor details two different types of laws; laws that conveyed duty upon the people and laws related to crimes and their deterrence. This difference can also be noted as laws that requite action and laws that bar action. Laws of duty were created to maintain society and encourage efficient interaction between those in the community and in power, laws of duty also established expectations of payment. Laws regarding crimes were created to outlaw behaviors that were a threat to the peace and the benefits that peace provided. Laws of duty are detailed extensively in The Laws of Edward the Confessor, and they specifically address components of society including payment, both to the king and other members local nobility as well as to the Holy Church, and service. Understood to legitimate requirements of payment and service was the debt one owed to the king for keeping peace in the land and a debt to God for his providing of the land. Ones debt to The Holy Church is recognized first in The Laws of Edward the Confessor. As the church was an extension of Gods will all men were expected to tithe in amounts directly related to what God had given them. It was written that if one had been blessed with ten horses one would be given to the church, if one had ten cows than one would be given to the church along with a tenth of the cheese and milk they produced. In this way it was established that the people had a duty owed to the church of a tenth of their produce, even those with less then ten of something would have been required to pay a percentage.# This debt extended past property but also to many resources taken from the land, such as water and timber. The early English also found themselves monetarily indebted to the king. Though The Laws of Edward the Confessor does not detail in it description of this debt as fully as it relates fees paid to churches it does describe an annual payment. The kings right to the land required those who owned a certain amount of property to pay alms to the king annually or be felonious and subject to the kings justice. The king would also charge for defense as needed to maintain the peace. The rest of ones debt to the king was only service and monetary penalties that would arise when parts of the debt were not paid.# The king also held a right to certain benefits of the land. Of these rights was the kings benefit of treasure and certain valuable resources. This right of the kings trumped individual ownership of any kind and at times shared the churches right to resources of the land. All gold and treasure would be the kinds but silver would be split between he and the Holy Church. Of services owed to the king the most elaborated on in The Laws of Edward the Confessor was ones required enlistment in a frankenpledge or friborg, referred to simply as frankenpledge in the following text. The king used the frankenpledge as part of the larger organization of all common people in such a way as to enforce his peace efficiently. With so many people to rule over and so little technological ability to track and control them a frankenpledge allowed a way to have the people themselves keep each other in accordance with the law. It is far more efficient to have an organization that is created to fine tune itself. The frankenpledge was the smallest organizational unit described in The Laws of Edward the Confessor. The frankenpledge was formed in response to the problem of capturing those who committed crimes, in early England a successful flight almost guaranteed one would get away. The frankenpledge was a group of ten men held accountable for each other with one man as their chief. If a member of a frankenpledge violated the law then it would be the job of the remaining nine to seek him out and bring him to receive justice. The frankenpledge also created a situation upon where the perpetrator was unrecoverable the remaining nine could be held in debt monetarily for his actions. This is incredibly efficient as a group formed in such a way will be less likely to commit crimes, more likely to catch those who commit crimes and furthermore allowed an overseer the ability to communicate with only one man, the frankenpledge chief. Though murder The Laws of Edward the Confessor specifies that in cases of certain murders the whole town can be held accountable the frankenpledge and the larger group it is encompassed under would more regularly be responsible. Within a baron own servants similar groups were expected. These operated the same way as other frankenpledges, however they were held under the laws of their specific region more so than with frankenpledges of freemen. This is represented by the right of soke, that when a crime was committed on a barons land the justice was his to observe. As the frankenpledge was so efficient as a small group so were the larger groups detailed within The Laws of Edward the Confessor. Frankenpledges were organized into groups of ten with a justiciar know as a decani above them. These larger groups of ten frankenpledges were created to deal with disputes that arose between neighboring frankenpledges and were called to solve problems that were of a certain monetary value before they were to allow justice from an even larger group.# There were above them higher justicairs called hundredmen who held justice above ten decani and thus over one hundred frankenpledges. These hundredmen were called to bring there justice to disputes of more importance.# Hundredmen would have been used to bring justice in disputes amongst villes as well as disputes of greater monetary value. A trehing consisted of three hundreds and these provided another level of justice where a hundredmen was unqualified to deliver justice. A shire was the meeting of all hundreds within a district and their justice was reserved for matters of great dispute. Shires were controlled by a prefect who was known to be especially wise or learned in the law. The shire observed disputes among important individuals or disputes that involved larger areas. This organization of men into larger and larger groups allowed the king great control of his kingdom without the cost of having to exercise it independently. It also allowed the people concerned in a dispute to have greater control over their own justice while having the legitimacy of the king. The king further able to benefit from the creation of these groups by being able to correct problems directly by addressing a problematic group instead of finding the source of the problem himself. Since fees could be assessed to the group as a whole they would take care of the problem themselves. Individuals were held accountable for their guests. As it would be far more difficult and find justice on a visitor whom was unaffiliated with these local groups. It would have been far more efficient and possible to take fees from one who lived in and was subject to the system of these organizations.# A critical part of the criminal law in creating efficiency throughout these proceedings was the paying of gauges and the use of ordeals. A problem of disputes brought out of anger or with intent to damage was alleviated by gauges, which would make it costly to accuse without good reason. Ordeals also would limit the amount of unnecessary legal action by often requiring extremely painful or dangerous measures to be taken to receive justice. Gauges were put up in order to make an accusation, they were also in many cases when one wished to defend himself. Gauges were relevant in that they allowed justices to observe the value that one placed on their need for justice. If one were to pay the gauge to accuse someone of felonious activity then they must prove their case or sacrifice their gauge to the administrators of justice, often these payments reaching the king. Ordeals were supervised by a local bishop and allowed the church to be involved in resolution of secular disputes. Ordeals were meant to represent Gods voice in justice. Ordeals of hot iron were extremely painful and it would be unlikely that one would undergo such a challenge unless they felt confident that God was on their side, this itself had the result of greatly limiting those who were willing to seek justice under these circumstances. Perhaps the greatest contribution of early English common law was the formalizing of such organizations and methods which made effective management of a kingdom efficient. The system of English common law as a whole was made in such a way as to govern itself whenever possible. It was only under matters of great importance, or which threatened to truly disrupt the peace of his kingdom that the king would have to get involved directly, though he always held that right. ...
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This note was uploaded on 04/07/2008 for the course HIST 163 taught by Professor Gorecki during the Winter '08 term at UC Riverside.

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