England and the United States have in a measure been excepted from the otherwise universal concurrence of all the civilized nations of the world in the acceptance of the Code Napoleon, or of the Civil Law of Rome in some shape, as the basis of their jurisprudence. In the great turmoil of the disruption of the Roman Empire by the Teutonic barbarians, what of Britain? The country was then called Britain, as will be remembered, and not England. This is a later appellation. And it was inhabited by a branch of the great Celtic Race, which had peopled all of western Europe – Romanized and civilized by four centuries of Roman occupation. The barbarians broke into Britain too; and ruin and desolation marked where the Anglo-Saxon savages came. Populous cities disappeared, or shrank into miserable villages. Fertile fields became barren wastes; commerce died; the Roman Civilization perished, and for two hundred years and upwards barbarism reigned supreme over Britain. Even the very name of the country was lost for several ages, and when the island emerged again from darkness into the morning twilight of a feeble civilization, and became sufficiently selfconscious to require a new name, it received that of England.
The predatory bands, composed of tribes bearing the various names of Angles, Jutes, Saxons and Frisians, and known to subsequent ages by the composite appellation of the Anglo-Saxons, who swarmed to Britain from the shores of North Germany during the fifth and sixth centuries of the Era (A.D. 483-586), under the leadership of Hengist and Horsa, and other chiefs, first to help the Britons against their northern enemies from Caledonia, the Picts and Scots; and afterwards treacherously to turn upon their allies, and to plunder, massacre, exterminate or expel the unwarlike Britons from their homes, were easily the worst, the most savage, and the most bloodthirsty of all the barbarians who overran and dismembered the Roman Empire. Franks, Goths, Vandals, and even the Huns, must yield the palm of savagery to the Teutonic invaders of Britain. To this effect is the unanimous testimony of all the historians of the time; and their own historians, when they became civilized enough afterwards to have historians, never sought to deny the fact. Sad confirmation is found of the bloody story in the condition of the country when Christianity and civilization were again introduced from Rome as contrasted with the flourishing state of Britain before the withdrawal of the Roman legions and the advent of the invaders from Germany. A recent English writer has given some reasons for believing that, in consequence of the ruin and devastation wrought by these intruders, even the great city of London – for comparatively a great city it was even in the old Roman times – was for a time wholly abandoned and without inhabitants.
But the Anglo-Saxons, with all their savagery, had great possibilities in them. “Non Angli, sed Angeli, si modo Christiani” – “not Angles, but Angels would they be, if they were only Christians” – said Pope Gregory I, of some of them who had been brought to Rome; and forthwith he sent Saint Augustine and some zealous companions in A.D. 596, to convert the people to Christianity, which after many difficulties they succeeded in accomplishing. Further on their seven petty kingdoms, known as the Heptarchy, were united under one sovereignty by King Egbert of Wessex (A.D. 827), and the Kingdom of England began, which lasted for about 240 years (A.D. 827-1066) under a line of Anglo-Saxon monarchs descended from Egbert, who, however, had to contend frequently for their thrones with a cognate race of invaders, the Danes, and occasionally even to yield the sovereignity of the island to them. The Danes were as ruthless as had been the Anglo-Saxons themselves; and they left a lasting impression on the population of England, and on the laws, manners, and customs of the country.
Two great monarchs of the Anglo-Saxon line were eminent as legislators, Alfred the Great (A.D. 871-901) and Edward the Confessor (A.D. 1043-1066) ; and one of these, Alfred, seems to deserve the character which he has generally received from impartial historians of having been one of the most perfect civic personages in all the annals of time. Apparently only nine such personages can be enumerated, and Alfred is not the least illustrious among them. To Alfred has often been attributed the institution of trial by jury. He did not institute it. It had no existence in England for more than two hundred years after his time, when it was introduced by the Normans, who themselves had derived it from the Franks. But he is known to have done much for the jurisprudence of his country. He borrowed much from the Brehon Laws of Ireland; and no doubt in his visit to Rome in A.D. 855, he had learned something of the Roman Civil Law. Edward the Confessor had spent much of his early life on the Continent of Europe, an exile from his native country; and the Civil Law of Rome was then making rapid strides for its rehabilitation. He obtained the reputation in after times of being the great lawgiver of his country. Whenever during the Norman and Plantagenet periods the people were oppressed or became dissatisfied with existing conditions, their dissatisfaction always found expression in a demand for the restoration of the laws of the sainted Edward. It is not quite apparent what these laws were for which they clamored; and it seems to have been no more than the popular fancy to attribute to him and to the great Alfred the enactment of much legislation which did not exist in their day, and so to attribute it merely as a ground for its introduction. But whatever either Alfred or Edward did for the improvement of the Anglo-Saxon jurisprudence, they had but two sources from which to draw inspiration, the Civil Law of Rome and the Brehon Law of Ireland; and upon both they seem to have liberally drawn. The Common Law of England, as they had it in the days of Coke and Blackstone, had but little existence in the AngloSaxon period of English history.
The Common Law of England
The institution of Feudalism, which was the foundation of the Common Law of England, as well as of all the Common Law systems of Europe, opposed to the Civil Law of Rome, had been established, as we have seen, in France, Spain, and Italy, by the Teutonic conquerors of the Roman Empire as a means for preserving their conquests; and it gained even a greater foothold afterwards in Germany itself by a species of reaction. At first sight it might be supposed that the Anglo-Saxons would have established the same institution in Britain. But there was no Feudalism in the Anglo-Saxon times in England. There was no conquered people there as on the Continent of Europe to be overawed and kept in subjection. By a course of procedure not entirely unknown to their more civilized descendants in dealing with alien races, the Anglo-Saxons had either exterminated the Britons, or had driven them into the mountain fastnesses of Wales, Cornwall and Cumberland. If any of the Britons remained under the dominion of their conquerors – and there undoubtedly was some remnant left they were too weak or too dispirited to give any concern to their conquerors. The Anglo-Saxons had simplified the problem which had confronted the Teutonic barbarians elsewhere. There was no conquered people to be kept in subjection, and there was therefore no occasion for the Feudal System.
But when in A.D. 1066, the Anglo-Saxons in their turn were treated to a taste of the cup of bitterness which they themselves had proffered to the Britons six hundred years before, and William of Normandy, with his hungry horde of buccaneers, descended in large part from the old Scandinavian pirates and freebooters of the North Seas, invaded and subjugated England, the Conqueror found the Feudal System, then at its zenith on the Continent of Europe, a ready instrument for the consolidation of his conquest; and he established a military despotism, which for a time was the most oppressive and the most tyrannical in Europe. He confiscated nearly all the land, despoiled and impoverished the previous Anglo-Saxon proprietors, and parcelled out their holdings among his own followers upon a purely military tenure for services rendered and thereafter to be rendered. The principal beneficiaries of the spoil subdivided the land among their own retainers upon a similar military tenure. The Anglo-Saxons, like the Helots of Lacedaemon, were reduced to a state of serfdom or villeinage, as it was called, between which and abject slavery there was but little practical difference. They were fixed to the soil, and could not leave it without the permission of their feudal masters, for whom they were required to toil and till the land. The Feudal System in its most aggravated form was firmly fixed upon England. It was the beginning of an entirely new social system, and necessarily therefore of a new jurisprudence; and from this time, is to be dated the beginning of the Common Law of England.
It may well be assumed that William of Normandy did not greatly concern himself with matters of jurisprudence further than as it was necessary to consolidate his conquest. Nor did his immediate successors, William Rufus, Henry I, Stephen of Blois, and the Empress Queen Matilda, expend any effort on the improvement of English Law. The Anglo-Saxons had a system of county courts which seem to have fairly well served the purpose of the administration of justice. William established an aula regia, or royal court, with a chief justiciary, as he was called, to represent the king; and out of this aula regia, in course of time, grew the Courts of King’s Bench, Common Pleas, and Exchequer, well known to the later history of English Law. But the system of law administered by the aula reqia and the chief justiciary was crude and uncertain. In fact, there was little worthy of the name of a legal system. The rude usages of Feudalism constituted nearly all the law that there was. The only law which the Norman barons knew, or for which they cared, was the law of war and the transfer of real estate under the Feudal System, The langualge of the courts was, and thereafter for several centuries remained the Norman French, a fact which of itself shows how little the Anglo-Saxon population was regarded in the matter of the administration of justice. This population was generally relegated to the county courts. So far as there was commerce in London and a few other cities, it was left to regulate itself as best it could by the usages and customs of those cities, and by petty tribunals of their own established therein.