The Englishry of English law in the age of Trumpism

-- By MalcolmEvans - 28 Nov 2017

Introduction

What Maitland called "the Englishry of English law" indeed lies precisely in its diversity of origin. “Englishry” as a legal concept referred to the status of someone as a natural-born Englishman; Maitland’s phrase highlights the fact that Englishmen came to “recognize [their law] as distinctively English.”(1) However, this notion belies the reality that English law is highly influenced by diverse, non-English, traditions and customs.

This paper serves two purposes. First, it discusses the diverse origins of English law. The second purpose is more ambitious: how can use the false believe in the “Englishry of English Law” and apply it to today’s world? Specifically, by analyzing the origins of English law, can we better understand the current US administration’s legal tactics and develop strategies to combatting their future actions? (2)

The Englishry of English Law

Establishing the law

English law developed as a means establishing and enforcing a societal hierarchy. Historically, England was “organized” around a system of tribes, chiefdoms, and proto-states. Undergirding this decentralized system was feudalism. (3) Feudal lords required disputes be submitted to local “courts” for settlement. This early system was a financial strategy as lords required compensatory damages be paid, not to the offended party, but to the lord who presided over the hundred (4) where the dispute took place.

Given the decentralization of England, lords were theoretically free to apply their own law, but they often were influenced by custom – custom, which, in turn, was influenced by several non-English regions. English legal customs originated, in part, from ancient Germanic customs and legal principles; (5) Roman influence made its way into custom through the church; Scandanavian influence could be seen as a result of the Viking invasions of the 8th and 9th centuries. These various influences – and the different weights assigned to them by different lords, lead to the simultaneous development of different customs – or several bodies of law, which exhibited “Englishry” to varying degrees.

Moreover, in addition to the proceedings happening at the hundred level, lords of the counties could compel the lords of the hundreds to come to their courts for proceedings. While this dual-level system helped bring some sense of uniformity to the hundreds within a particular county, understandably customs between hundreds and counties varied widely.

Centralization

After England was conquered by the Normans, the King - William the First – wanted to centralize England. Unsurprisingly, he proclaimed that all land and land-based rights were vested in the King. This included the right of holding court, which became a means of ensuring that the profits previously flowing to the feudal lords, would now flow to the King.

To ensure the flow of profits was uninterrupted, the king instituted a system of courts. The Justices in Eyre (Eyre) were principally responsible for creating a pipeline between the hundreds and the king. To do so, the Eyre consisted of judges who represented the King and traveled to see different counties and hundreds – known as “circuits” - to make sure the law was applied consistently throughout England. (6)

As part of this process, the Eyre recorded the decisions of the cases adjudicated in the courts, though they did not record the accompanying reasoning. The entire process of settling disputes, and recording decisions, created precedent within the realm – precedent which became the basis of common law. Moreover, the concept of “case law” derives from the fact common law was established on a case-by-case basis.

While the Eyre was responsible for maintaining the conformity of the law, they conformed the law not by looking to general principles, but rather at the custom of the king’s court. Said differently, “the custom of the king’s court is the custom of England and [became] the common law.” (7)

Nonetheless, when the Eyre judges were traveling to different circuits, they encountered many local customs being used as the basis of adjudicating disputes. And while these customs clearly were not established by the king, the king’s justices expressed general respect for the local customs. “We see no signs of any consciously conceived desire to root them out.” However, it was clear that they were not allowed to grow any further, “especially in all matters of procedure.” (8)

Putting it all together

By now we’ve established that the King centralized the administration of law throughout the country. This centralization was based, in large part, on customs that the King brought from Normandy. For instance, when a person was slain, they were assumed to be a Norman and the hundred where the person was found would owe the King fine, unless the hundred could prove the person’s “Englishry.”

As such, it is clear that the establishment of English law owes its roots to several places: Germany, Rome, Scandinavia, and Normandy to name a few. Although after the conquest Englishmen consciously sought to make their law distinctly English – by often objecting to following foreign principles simply because they were not English – the diverse origins of the law are impossible to wash away.

But now that we’ve arrived at an answer, how can we apply these concepts to our current lives?

A billboard for law students

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Notes

1 : F. Pollock & F.W. Maitland, History of English Law Before the Time of Edward I (2nd ed. 1899), 188

2 : Given this broader purpose, I’m writing this paper to an uniformed audience. Certain concepts will be explained in the footnotes, so read them, please!

3 : Feudalism in short is the idea of a lord’s granting of a fief, or property right, to a vassal (person) in exchange for the vassal’s labor and military support / protection.

4 : A “Hundred” is simply an area, similar to the concept of a zip code.

5 : Though England tried to make this law distinct by writing it in Anglo-Saxon instead of Latin

6 : As to not interrupt the King’s money machine of course.

7 , 8 : Maitland, 184

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