Venteicher Rare Book Room

The Emergence of the Common Law of England

Although unique from the Civil law systems of other European countries, England's common law system has a Roman influence. Roman law was taught and studied in the 12th century by English lawmakers of the day. Justinian's Institutes, written in the year 533 A.D. during the reign of Emperor Flavius Anicius Justinian, is a text that would have been part of that study. The first passage, cupidae legum inventuti, means "to the young desirous of legal knowledge." It is a work specifically designed as an introductory, simple exposition of the general principles of private law for students embarking on the study of law. Yet the Institutes were more than an ancient hornbook; they had the force of law as an integral part of the Emperor's overall codification of Roman Law.

That compilation, the Corpus Juris Civilis, was a concise consolidation and integration of Justinian's own statutes, the statutes of his predecessors and the writings of Roman jurists. That codification has been described as "the greatest event of the 6th century." Roman Law greatly influenced or was wholly adopted by most of Europe with the notable exception of England.

Our copies of the Institutes, dated 1529 and 1546, are the oldest books in the Venteicher Rare Book Room collection.

Although the island of Britain was a Roman colony for 4 centuries, the influences of Roman Law nearly disappeared during the Anglo-Saxon occupation in favor of customary law. In this way, Saxon kings stood apart from the rest of Europe. The Norman conquest of 1066 reintroduced continental ideas including Roman ones. Christianity and the emergence of Canon law also helped preserve Roman legal concepts. The 12th and 13th centuries saw great strides towards the development of common law and also mark the time of the Bologna revival of Roman law that reached England in the 12th century. 

Most lawyers and judges in 12th century England were churchmen schooled in Canon and Civil law. This training in method and principal enabled them to construct a rational, a general, a definite system of law out of the vague and conflicting mass of customs, half tribal, half feudal of which English law consisted.

How intentional the use of Roman law was is unknown but its influence is apparent in the first treatises on the law of England. The preface and introductory chapters of Glanvil's treatise are taken from the preface to Justinian's institutes and all through the book are traces of influence of Roman rules more or less adapted to the fabric of English law. As Frederic Maitland commented, "There are very few sentences in it which can be traced to any Roman book, and yet in a sense the whole book is Roman." The use of Roman legal principles is perhaps more pronounced in Bracton's 13th century treatise. Where the common law was silent, or where it was defective, he drew upon Roman law. It supplied a method of reasoning upon legal matters and a power to create a technical language to describe precise rules from vague customs and individual cases.

After the end of the 13th century, the study of Civil and Canon law ceased to influence directly the development of English law, but up to that period the influence was direct. By imparting to the customary law of England the essence of Roman principles, English jurists were able to construct a system which could stand on its own without foreign aid.

Tractatus de Legibus et Consuetudinibus Regni Angliae (A Treatise on the Laws and Customs of the Kingdom of England), written between 1187 and 1189, is the first treatise written on the common law of England. It was first printed in 1554 and a copy of that first edition is displayed here along with a later 1673 printing.

(image to the left shows 1554 edition.)

Ranulf Glanvil, the supposed author of this treatise, was a prominent lawyer and advisor to King Henry II. He was also a soldier leading the English army in an 1174 victory over the Scots at Alnwick. He served as a general in the Welsh wars and in the wars against the king's permanent court which was formed in 1178. In 1180, he became Chief Justiciar of England, which is comparable to the modern office of prime minister. Glanvil died in 1190 while on a crusade to Acre.

The reign of Henry II saw many legal reforms, such as the consolidation of the courts in England and the first forms of jury trials, which are reflected in Glanvil's treatise. Glanvil set out the procedures for these new legal forms and, by putting them in writing, provided direction for future lawyers and judges. The book is a vivid image of the importance of land law and procedure in Medieval England. It is intensely practical. There is a great deal of information about the modes of litigation appropriate to various writs. Glanvil is said to have been the inventor of the assize of novel disseisin and the action of replevin. Distinctions are drawn between civil and criminal pleas, between pleas heard by country court and those heard by the lords of franchises.

It is doubtful that Glanvil actually wrote the treatise himself. Scholars speculate that Glanvil's nephew and secretary, Hubert Walter, wrote the book with Glanvil's consent and perhaps his supervision. Like most scholarly writings of the time, Glanvil's treatise was written in Latin. The treatise stood as the standard text book of English law for almost a century until Bracton's treatise became available in the middle of the 13th century. Indeed, Bracton made extensive use of it in his work. Coke later paid a tribute of praise and gratitude to it and used it freely in his writing.

The library's copy of the 1554 edition includes the signature of Francis Hargrave, a famous English lawyer and antiquarian who died in 1821. He donated his collection to the British Museum. The Museum's stamp can be seen on the verso and there is a duplicate stamp indicating the book was withdrawn. 

(image to the right shows the 1673 title page.)

Henry II, the first of the Plantagenets, was the son of Geoffrey Plantagenet and Matilda, daughter of Henry I. In 1152, Henry married Eleanor of Aquitaine, the ex-wife of Louis VII of France and gained considerable lands in France. In 1153 Henry invaded England and forced Stephen to make him heir to the throne. In 1154 Henry of Anjou became King Henry II (to 1189). With Eleanor, he had eight children.

An energetic and capable ruler, Henry soon restored order after the anarchy of Stephen's reign, creating an efficient civil service and introducing many legal reforms. A body of common law emerged to replace feudal and county courts, which varied from place to place. An early form of jury trials called assizes, were initiated to end the old Germanic customary trials by ordeal or battle. He chose capable people for his ministers. His struggle to bring the Church under royal control culminated in the murder of Thomas Becket in 1170.

As the king's chief minister, Becket had led a life of pomp and power. But when Henry made him Archbishop of Canterbury, Becket changed his ways. He adopted a frugal lifestyle and became a staunch defender of the Church. When he excommunicated several royal servants, Henry is reported to have bellowed angrily, "Who will rid me of this turbulent priest?" Four knights mistakenly took these words as an order to execute the archbishop and murdered him near the altar of Canterbury Cathedral. Henry deeply mourned the passing of his friend who was canonized as a martyr and a saint.

Henry II's later years were dogged by vicious family arguments as his sons, including Richard I and John, squabbled over their inheritance. In 1173 his sons rebelled, supported by their mother, Eleanor of Aquitaine. Henry died on July 6, 1189, after a successful revolt led by his son Richard. A few quotes from historic records shed a unique light on Henry and his family; "Henry II Plantagenet, the very first of that name and race, and the very greatest King that England ever knew, but withal the most unfortunate ... his death being imputed to those whom himself had given life, his ungracious son..." Henry and his family's struggle was dramatized in the 1968 film, A Lion in Winter starting Katherine Hepburn and Peter O'Toole.

Was it a grant, or a law, or a treaty, or a declaration of right, or a constitution? If we look at it from the standpoint of modern jurisprudence, or its influence upon later developments of constitutional law, we might plausibly maintain that it was any one of these things. But from the standpoint of 1215 Medieval England, it was an enactment formulated by the king, the church, barons, and merchants, as partners in the legislative powers of the state. We can find the closest modern parallel in the legislation resulting from modern international conventions that have formulated rules of international law.

Written during the troubled reign of King John, who abused the strong central government and system of taxation with his obsession to regain possession of French lands, the Magna Carta reveals the presence of strongly marked class distinctions that was a characteristic of medieval society. It does not legislate for Englishmen generally, but attempts to safeguard the rights of different classes according to their different needs. The document stresses three points:

• The Church is free to make its own appointments
• no more than the normal amounts of money can be collected to run the government, unless the king's feudal tenants give their consent
• no freeman is to be punished except in concert with the common law.

The famous clause 39 states; "No free man shall be taken or imprisoned or disseised (have property taken away from him) or outlawed or exiled or in any way ruined, nor shall we go or send against him, except by the lawful judgment of his peers or by the law of the land." This clause, so broad and vague, permits almost any interpretation. It has been argued that it is the foundation of the writ of Habeas Corpus, trial by jury and due process. "Although it is questionable that these arguments are true, the clause does embody protest against arbitrary punishment and against arbitrary infringements of personal liberty and rights of property. It does assert a right to a free trial. It is an attempt, in the language of the 13th century to realize these ideals. It is the first expression of the leading ideas of constitutional government.

The period in which the law is developed by the power of the crown alone is over; the period that will end in the establishment of a body that will limit the power of the crown and share in the making of the laws is begun. In the meantime, the common law is safe. The king is restrained, but the law remains.

The Rare Book Room copy of the Magna Carta was printed in 1576 in various languages.

John was born on Christmas Eve in 1167, the youngest son of Henry II. His parents drifted apart after his birth and his youth was divided between his eldest brother's house, Richard where he learned the art of knighthood and the house of his father's justiciar, Ranulf Glanvil, where he leaned about the business of government.

King John's reign, beginning in 1199, was full of trouble. A succession dispute with his nephew, Arthur of Brittany ultimately resulted in the loss of French territories. By 1215, John crossed the Channel back into England as the last of his French possessions fell out of his hands. From this time to the end of his reign, John was preoccupied with the regaining of these territories, levying a number of new taxes upon the landed barons to pay for his unsuccessful campaigns. John used all of the large powers of the crown and all the new machinery of government established by his father Henry II to oppress all classes of the nation. The barons had been willing to purchase protection from Henry at the price of taxation; John continued to exact the price, but failed to furnish good government in return. Far from protecting the humble from oppression, he was the chief oppressor. Far from using the perfected machinery of exchequer, curia and local government in the interests of good government, John valued them merely as instruments of extortion and outrage.

Such a king could not be endured. In 1215, the discontented rebel barons revolted and captured London. In June, at Runnymeade, John met with the barons and signed the Magna Carta. The granting of the Magna Carta, and the success of the barons in maintaining it, opened a new chapter in English history, which ended by establishing a system of constitutional government, of which the Magna Carta was regarded as the pledge and the symbol.

"Henry of Bratton (Henricus de Brattona or Bractona c. 1210-1268) was an English judge of the court known as coram rege (later King's bench) from 1247-1250 and again from 1253-1257. After his retirement in 1257, he continued to serve on judicial commissions. He was also a clergyman, having various benefices, the last of which being the chancellorship of Exeter Cathedral, where we was buried in 1268."
Quoted from Bracton Online.

(image to the left shows the 1569 title page.)

Bracton's treatise, written during the reign of King Henry III, appeared during a stage of development when the common law had emerged from the chaos of local customs and fixed forever the principles of common law. He begins his treatise by remarking that "whereas in almost all countries, they use laws and written right, England alone uses within her boundaries unwritten right and custom." Bracton set himself the task of remedying this defect by systematizing and codifying the common law of England. In his own words, he "reduced it into one summary, under titles and paragraphs, to be commended to perpetual memory by the aid of writing." Although bearing almost the same title as Glanvil's work, Bracton's treatise is not a mere text book on practice, but an exposition of the law itself -- the first of its kind in England."

Bracton's aim is first of all practical. The subject matter of his treatise are "the facts and cases which daily emerge and happen in the realm of England, that it may be known what is the proper form of action and what is the proper form of writ." But beyond this there is a moral aim, "that bad men may be rendered good and good men better as well by the dread of penalties as by the encouragement of reward." Lofty in his estimation of the office of the judge: "Let not one who is unwise and unlearned ascend the judgment seat, which is the throne of God, lest he change into the light of darkness, and lest, like a madman with a sword in his untutored hand, he slay the innocent and set free the guilty."

Described by Frederic Maitland as "the crown and flower of Medieval jurisprudence," Bracton's treatise was long accepted as the standard exposition of English law. No judicial writer rivaled Bracton until Blackstone arose five centuries later.

(image on the right shows outside cover of Bracton.)

Our copy of De Legibus Consuetudinibus Angliae is a first edition printed in 1569 by Richard Tottel in London. The 1554 first edition of Glanvil's treatise and the 1576 edition of the Magna Carta in our collection were also printed by Tottel. The book is bound in vellum, which is made of raw, untreated animal skin dried under tension to form a hard surface. Our copy is in fine condition, yet the spine is beginning to crack. Fortunately, the title page of this rare and important book has been photographed and displayed here. Our copy also has many contemporary notations including a 1589 signature of a former owner of the book, Eduardo Combs.