by  Winston  Churchill

The English Common Law

THE Plantagenets were rough masters, and the temper of the age was violent. It was the violence however of vigour, not of decadence. England has had greater soldier-kings and subtler diplomatists than Henry II, but no man has left a deeper mark upon our laws and institutions. His strange outbursts of frenzied energy did not exhaust themselves in politics, war, and the chase. Like his Norman predecessors and his sons, Henry II possessed an instinct for the problems of government and law, and it is here that his achievement lies. The names of his battles have vanished with their dust, but his fame will live with the English Constitution and the English Common Law.

This great King was fortunate in his moment. William I and Henry I had brought to England or preserved there all those instruments through which their successor was to work. They themselves could move but slowly and with caution. The land must settle itself to its new rules and rulers. In 1154 however Henry of Anjou had come to a country which nearly twenty years of anarchy had prepared for the acceptance of a strong hand at the centre. Himself a Frenchman, the ruler of more than half France, he brought to his task the qualities of vision, wide experience, and a strength that did not scruple to stoop to cunning. The disasters of Stephen's reign determined Henry not only to curb baronial independence and regain the ground lost by his predecessor, but to go much further. In place of a multitude of manorial courts where local magnates dispensed justice whose quality and character varied with the customs and temper of the neighbourhood, he planned a system of royal courts which would administer a law common to all England and all men.

The policy was not without peril. The King was wise enough to avoid a direct assault, for he knew, as the Conqueror had known, that to lay a finger upon the sanctity of customary rights would provoke disaster. Faced with this barrier, Henry shrewdly opposed custom to custom' and cloaked innovation in the respected garb of conservatism. He was careful to respect existing forms. His plan was to stretch old principles to take on new meanings. In an unwritten Constitution the limits of the King's traditional rights were vaguely defined. This opened a shrewd line of advance. 

For centuries before the Conquest, Church and King had been the enemies of seigneurial anarchy, but there had been no question of swiftly extending the Crown's jurisdiction. Fastening upon the elastic Saxon concept of the King's Peace, Henry used it to draw all criminal cases into his courts. Every man had his own Peace, which it was a crime to break, and the more important the man the graver the breach. The King's Peace was the most important of all, and those who broke it could be tried in the King's court. But the King's Peace was limited, and often embraced only offences committed in the King's presence or on the King's highway or land. When the King died his Peace died with him and men might do as they willed. Cautiously and quietly Henry began to claim that the King's Peace extended over all England, and that no matter where it was broken offenders should be tried in the King's courts. Civil cases he attracted by straining a different principle, the old right of the King's court to hear appeals in cases where justice had been refused and to protect men in possession of their lands. He did not brandish what he was about; the changes that he made were introduced gradually and without legislation, so that at first they were hardly perceived. Rarely is it possible to state the date at which any innovation was made; yet at the King's death a clever man might have looked back and seen how much had been altered in the thirty-five years that Henry II had sat on the English throne.

But if Henry was to pose as a conservative in the legal sphere he must be consistent. Compulsion could play little part in his programme; it had to be the first principle of his policy to attract cases to his courts rather than to compel them. A bait was needed with which to draw litigants to the royal courts; the King must offer them better justice than they could have at the hands of their lords. Henry accordingly threw open to litigants in the royal courts a startling new procedure—trial by jury. Regale quoddam beneficium, a contemporary called it—a royal boon; and the description illuminates both the origin of the jury and the part it played in the triumph of the Common Law. Henry did not invent the jury; he put it to a new purpose. The idea of the jury is the one great contribution of the Franks to the English legal system, for, unknown in this country before the Conquest, the germ of it lies far back in the practice of the Carolingian kings. In origin the jury was a royal instrument of administrative convenience: the King had the right to summon a body of men to bear witness under oath about the truth of any question concerning the royal interest It was through this early form of jury that William the Conqueror had determined the Crown rights in the great Domesday survey. The genius of Henry II, perceiving new possibilities in such a procedure, turned to regular use in the courts an instrument which so far had only been used for administrative purposes.

Only the King had the right to summon a jury. Henry accordingly did not grant it to private courts, but restricted it to those who sought justice before the royal judges. It was an astute move. Until this time both civil and criminal cases had been decided through the oath, the ordeal, or the duel. The court would order one of the litigants to muster a body of men who would swear to the justice of his cause and whom it was hoped God would punish if they swore falsely; or condemn him, under the supervision of a priest, to carry a red-hot iron, or eat a morsel of bread, or be plunged in a pool of water. If the iron did not burn or the bread choke or the water reject him so that he could not sink, then Divine Providence was adjudged to have granted a visible sign that the victim was innocent. The duel, or trial by battle, was a Norman innovation based on the modern theory that the God of Battles will strengthen the arm of the righteous, and was at one time much favoured for deciding disputes about land. Monasteries and other substantial landowners took the precaution however of assisting the Almighty by retaining professional champions to protect their property and their rights. All this left small room for debate on points of law. In a more rational age men were beginning to distrust such antics, and indeed the Church refused to sanction the ordeal during the same year that Magna Carta was sealed. Thus trial by jury quickly gained favour. But the old processes were long in dying. If a defendant preferred to take his case before God man could not forbid him, and the ordeal therefore was not abolished outright. Hence a later age was to know the horrors of the peine forte et dure—-the compulsion of the accused by slow pressure to death to agree to put himself before a jury. Time swept this away; yet so late as 1818 a litigant nonplussed the judges by an appeal to trial by battle and compelled Parliament to abolish this ancient procedure.

The jury of Henry II was not the jury that we know. There were various forms of it; but in all there was this essential difference: the jurymen were witnesses as well as judges of the facts. Good men and true were picked, not yet for their impartiality, but because they were the men most likely to know the truth. The modern jury which knows nothing about the case till it is proved in court was slow in coming. The process is obscure. A jury summoned to Westminster from distant parts might be reluctant to come. The way was long, the roads unsafe, and perhaps only three or four would arrive. The court could not wait. An adjournment would be costly. To avoid delay and expense the parties might agree to rely on a jury de circumstantibus, a jury of bystanders. The few jurors who knew the truth of the matter would tell their tale to the bystanders, and then the whole body would deliver their verdict. In time the jurors with local knowledge would cease to be jurors at all and become witnesses, giving their evidence in open court to a jury entirely composed of bystanders. Such, we may guess, or something like it, was what happened. Very gradually, as the laws of evidence developed, the change came. By the fifteenth century it was under way; yet the old idea lingered, and even under the Tudor kings jurymen might be tried for perjury if they gave a wrongful verdict.

The jury system has come to stand for all we mean by English justice, because so long as a case has to be scrutinised by twelve honest men, defendant and plaintiff alike have a safeguard from arbitrary perversion of the law. It is this which distinguishes the law administered in English courts from Continental legal systems based on Roman law. Thus amidst the great process of centralisation the old principle was preserved, and endures to this day, that law flows from the people, and is not given by the King.

These methods gave good justice. Trial by jury became popular. Professional judges removed from local prejudice, whose outlook ranged above the interested or ignorant lord or his steward, armed with the King's power to summon juries, secured swifter decisions, and a strong authority to enforce them. Henry accordingly had to build up almost from nothing a complete system of royal courts, capable of absorbing a great rush of new work. The instrument to which he turned was the royal Council, the organ through which all manner of governmental business was already regularly carried out It was to be the common parent of Chancery and Exchequer, of Parliament, of the Common Law courts and those Courts of Prerogative on which the Tudors and Stuarts relied. At the outset of Henry II's reign, it dealt almost indiscriminately with every kind of administrative business. On the judicial side the Court of the Exchequer, which tried cases affecting the royal revenue, was beginning to take shape; but in the main the Council in this aspect was scarcely more than the King's feudal court, where he did justice, like any other lord, among his vassals. Under Henry II all this was changed. The functions of the King's justices became more and more specialised. During the reigns of his sons the Council began to divide into two great courts, the King's Bench and the Common Pleas. They did not become fully separate till a century later. Thereafter, with the Court of the Exchequer, they formed the backbone of the Common Law system down to the nineteenth century. In addition, travelling justices—justices "in eyre"-—-were from time to time appointed to hear all manner of business in the shires, whose courts were thus drawn into the orbit of royal justice.

But all this was only a first step. Henry also had to provide means whereby the litigant, eager for royal justice, could remove his case out of the court of his lord into the King's court. The device which Henry used was the royal writ. At all costs baronial rights must be formally respected; but by straining the traditional rights of the Crown it was possible to claim that particular types of ease fell within the King's province. Upon this principle Henry evolved a number of set formulae, or writs, each fitted to a certain type of case; and any man who could by some fiction fit his own case to the wording of one of the royal writs might claim the King's justice. The wording of writs was rigid, but at this date new forms of writ might still be given. For about eighty years they increased in number, and with each new form a fresh blow was struck at the feudal courts. It was not until de Montfort's revolt against the third Henry in the thirteenth century that the multiplication of writs was checked and the number fixed at something under two hundred. This system then endured for six hundred years. However the times might change, society had to adapt itself to that unbending framework. Inevitably English law became weighted with archaisms and legal fictions. The whole course of a case might depend on the writ with which it was begun, for every writ had its special procedure, mode of trial, and eventual remedy. Thus the Saxon spirit of formalism survived. Henry II had only been able to break down the primitive methods of the early courts by fastening upon the law a procedure which became no less rigid. Yet, cumbersome though it was, the writ system gave to English law a conservative spirit which guarded and preserved its continuity from that time on in an unbroken line.

It is a maxim of English law that legal memory begins with the accession of Richard I in 1189. The date was set for a technical reason by a statute of Edward I. It could scarcely have been more appropriately chosen however, for with the close of the reign of Henry II we are on the threshold of a new epoch in the history of English law. With the establishment of a system of royal courts, giving the same justice all over the country, the old diversity of local law was rapidly broken down, and a law common to the whole land and to all men soon took its place. A modern lawyer, transported to the England of Henry's predecessor, would find himself in strange surroundings; with the system that Henry bequeathed to his son he would feel almost at home. That is the measure of the great King's achievement. He had laid the foundations of the English Common Law, upon which succeeding generations would build. Changes in the design would arise, but its main outlines were not to be altered.

It was in these fateful and formative years that the English-speaking peoples began to devise methods of determining legal disputes which survive in substance to this day. A man can only be accused of a civil or criminal offence which is clearly defined and known to the law. The judge is an umpire. He adjudicates on such evidence as the parties choose to produce. Witnesses must testify in public and on oath. They are examined and cross-examined, not by the judge, but by the litigants themselves or their legally qualified and privately hired representatives. The truth of their testimony is weighed not by the judge but by twelve good men and true, and it is only when this jury has determined the facts that the judge is empowered to impose sentence, punishment, or penalty according to law. All might seem very obvious, even a platitude, until one contemplates the alternative system which still dominates a large portion of the world. Under Roman law, and systems derived from it, a trial in those turbulent centuries, and in some countries even to-day, is often an inquisition. The judge makes his own investigation into the civil wrong or the public crime, and such investigation is largely uncontrolled. The suspect can be interrogated in private. He must answer all questions put to him. His right to be represented by a legal adviser is restricted. The witnesses against him can testify in secret and in his absence. And only when these processes have been accomplished is the accusation or charge against him formulated and published. Thus often arises secret intimidation, enforced confessions, torture, and blackmailed pleas of guilty.

These sinister dangers were extinguished from the Common Law of England more than six centuries ago. By the time Henry 11s  great-grandson, Edward I had died English criminal and civil procedure had settled into a mould and tradition which in the mass govern the English-speaking peoples to-day. In all claims and disputes, whether they concerned the grazing lands of the Middle West, the oilfields of California, the sheep-runs and gold-mines of Australia, or the territorial rights of the Maoris, these rules have obtained, at any rate in theory, according to the procedure and mode of trial evolved by the English Common Law.

Nor was this confined to how trials were conducted. The law that was applied to such multitudinous problems, some familiar, others novel, was in substance the Common Law of England. The law concerning murder, theft, the ownership of land, and the liberty of the individual was all transported, together with much else, to the New World, and, though often modified to suit the conditions and temper of the times, descends in unbroken line from that which governed the lives and fortunes of twelfth-century Englishmen.

Most of it was then unwritten, and in England much still remains so. The English statutes, for example, still contain no definition of the crime of murder, for this, like much other law, rested on the unwritten custom of the land as declared by the inhabitants and interpreted, developed, and applied by the judges. Lawyers could only ascertain it by studying reports and records of ancient decisions. For this they had already in this early age made their own arrangements. A century after Henry's death they began to group themselves into professional communities in London, the Inns of Court, half colleges, half law-schools, but predominantly secular, for the presence of clerics learned in the laws of Rome and the Canon Law of the Roman Church was not encouraged, and here they produced annual laws reports, or "Year Books," as they were then called, whose authority was recognised by the judges, and which continued in almost unbroken succession for nearly three centuries. In all this time however only one man attempted a general and comprehensive statement of the English Common Law. About the year 1250 a Judge of Assize named Henry of Bracton produced a book of nearly nine hundred pages entitled A Tract on the Laws and Customs of England. Nothing like it was achieved for several hundred years, but Bracton's method set an example, since followed throughout the English-speaking world, not so much of stating the Common Law as of explaining and commenting on it, and thus encouraging and helping later lawyers and judges to develop and expand it. Digests and codes imposed in the Roman manner by an omnipotent state on a subject people were alien to the spirit and tradition of England. The law was already there, in the customs of the land, and it was only a matter of discovering it by diligent study and comparison of recorded decisions in earlier cases, and applying it to the particular dispute before the court. In the course of time the Common Law changed. Lawyers of the reign of Henry II read into the statements of their predecessors of the tenth century meanings and principles which their authors never intended, and applied them to the novel conditions and problems of their own day. No matter. Here was a precedent. If a judge could be shown that a custom or something like it had been recognised and acted upon in an earlier and similar case he would be more ready, if it accorded with his sense of what was just and with the current feelings of the community, to follow it in the dispute before him. This slow but continuous growth of what is popularly known as "case law" ultimately achieved much the same freedoms and rights for the individual as are enshrined in other countries by written instruments such as the Declarations of the Rights of Man and the spacious and splendid provisions of the American Declaration of Independence and constitutional guarantees of civil rights. But English justice advanced very cautiously. Even the framers of Magna Carta did not attempt to lay down new law or proclaim any broad general principles. This was because both sovereign and subject were in practice bound by the Common Law, and the liberties of Englishmen rested not on any enactment of the State, but on immemorial slow-growing custom declared by juries of free men who gave their verdicts case by case in open court.