The origins of our Legal System (Part 1)

Like many lawyers (whether solicitor or barrister) I studied for a Law degree (mine was a combined Law and Business degree and believe it or not a Law degree is not required to qualify as a lawyer!). Studying for my law degree I learned the various aspects of the law of England and Wales, including the basics of contract law, land law, constitutional law, law of Tort amongst others, whilst the Legal Practice Course provided the skills required to implement the law and work as a solicitor.

Whilst my studies included how the law had developed through statute and case law, none of this study taught me the origins of our legal system. This is something I did not require to practice as a solicitor in the 21st century, however moving into family history and house history research and looking at old court records I realise that understanding the history and development of our legal system is part of understanding these records and the influence the legal system had on our ancestors.

This blog will therefore be the first of a series of blogs looking at the history and development of the legal system and its impact on our ancestors.

The laws of England and Wales, be they criminal or civil, have their origins in common law.

What is meant by common law?

The term “common law” was originally used to distinguish between the general law of the church which applied to everyone and local laws or customs which existed in different parts of the Christian world. Over time, the term common law came to represent those laws set down by ancient use and by judges setting precedents when determining cases. These laws apply to everyone and are distinct from the laws laid down by local custom and parliament in statute although many of those statutes have their origins in common law.

In England it was not until the Anglo-Saxons established themselves that a unified legal system began to emerge. The legal system inherited by the Anglo-Saxons was based on a mix of Celtic law and Roman law.

Celtic law could be said to be “prehistory” because little is really known about it. It is thought Celtic law would have centred around kinship and contractual relations which would have been similar to Roman laws and/or Germanic laws. Much of what is thought to be Celtic law is based on early medieval Irish and Welsh law.

Murray Rothbard in his book “For a New Liberty” (Macmillan publishers 1973, page 250) describes the Celtic system in Ireland:

“The basic political unit of ancient Ireland was the tuath. All “freemen” who owned land, all professionals, and all craftsmen, were entitled to become members of a tuath. Each tuath’s members formed an annual assembly which decided all common policies, declared war or peace on other tuatha, and elected or deposed their “kings.” An important point is that, in contrast to primitive tribes, no one was stuck or bound to a given tuath, either because of kingship or of geographical location. Individual members were free to, and often did, secede from a tuath and join a competing tuath”

Following the Roman invasion in the first century Roman law was imposed in England, at least in relation to Roman citizens. It could be argued Roman law was perhaps the most influential, reflected by the continued use of Latin in our legal documents until 1733 and the continued use today of Latin legal terminology in our legal system, particularly in common law.

Under the Romans, England (aka Britannia) was ruled by a Governor or Legatus Augusti pro praetore appointed to Emperor in Rome. England was divided into tribal capitals to oversee local government in each area. Towns and communities were governed by a consul of around hundred capital members from whom four magistrates would be elected each year and two members would be elected to serve in the office of duumviri, mainly concerned themselves with administering the law which was set out in edicts or codes.

“Map of Roman Britain” by Emil Reich is licensed under CC BY-SA 4.0.

In most towns, most of this work of the local consuls took place in the basilica building where legal cases would also be heard. Criminal law was generally dealt with by the Governor whilst civil cases would be largely dealt with by the local councils. Law was complex with several sets of law existing alongside each other. Roman law differed between those who were Roman citizens and those who were not, whilst it is likely Celtic law also continued to operate.

Punishments varied according to the crime and a person’s class. Whilst for a serious crime a member of the upper classes may have been deprived of their citizenship and some of their property, for a similar crime a poorer man might be given the death penalty or be sent to the mines.

However, wills and the problems of inheritance took much of the time of the justice.

Judges were given great freedom in how they dealt with cases in indeed whether or not to deal with a case, there was no legal obligation to judge a case. In general, a judge would consider all the evidence and rule in the way that seemed just.

Judges were specialists or experts on law so would often consult jurists about technical aspects of a case, although he would not bound by the jurist’s advice. At the end of a case, if the judge was undecided or not clear, he could refuse to give judgment by swearing that it was not clear.

This Roman legal system, which continued to evolve in many other countries, disappeared in England after the Romans left in the 5th century with the Anglo-Saxons bringing with them their own Germanic legal system.

The Anglo-Saxons brought with them and produced their own laws, known as “dooms”. It is from these Anglo-Saxon laws that our present legal system originates, the original Anglo-Saxon law having grown and adapted over centuries with influences Scandinavia, the Normans and the involvement of the different Christian Kings.

“map from ‘[History of England. Vol. I. Anglo-Saxon period. [With maps.]]’.” is marked with Public Domain Mark 1.0.

Of course, in the early periods Anglo-Saxons established a number of Kingdoms in England – Kent, Wessex, East Anglia and Mercia. There was no one ruler over all of England. Thus, traditional laws were spread widely by word of mouth whilst individual rulers established their own codes such King Aethelbert of Kent who issued his own codes between the years 597 and 602, being the oldest surviving written codes and was written in the vernacular so as to be accessible to all (who could read).

Rulers/Kings were responsible for law and within their Kingdoms with monetary fines or payments being the prime penalty for feuds thus law enforcement was a major source of royal income. The aim of the early laws was largely to protect the church, religious values and establish and maintain stability.

The protection of the church and religious values, as with many aspects of our ancestors’ lives, formed the basis of the English legal system and its development for many centuries, arguably until the 19th century when civil registration was introduced and the ecclesiastical courts lost much of their responsibility and work to the secular courts, in particular in relation to matrimonial cases, probate, defamation and tithes.

In my next blog I will take a closer look at the Anglo-Saxon legal system and enforcement of law, which is truly where the origins of our present-day system lay.


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