FRENCH AND ENGLISH ROYAL LAW COMPARED
In the late thirteenth and fourteenth centuries, especially after the Parlement of Paris began to flourish and the English bar became established in London, the law of the king's courts in France began to diverge more and more sharply from the law of the king's courts in
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England.
Eventually, after another century or so, the two systems acquired many of the contrasting features that have continued to characterize them in the twentieth century. The French system came to rely heavily on written procedure, the English on oral procedure; the French relied on hundreds of highly trained professional judges, the English on lay jurors and lay justices of the peace and only a very few professional judges; the French on judicial interrogation of parties and witnesses under oath, the English on accusation and denial by the opposing parties with resolution by the jury. With regard to substantive law, French royal law was more systematic, more learned, more Roman, more codified, while English royal law was more particularistic, more practical, more Germanic, more oriented to case law. French royal law covered more ground: civil obligations, including contracts, delicts, and unjust enrichment; property; corporations; trusts; crimes; public law; the law of nations. English royal law was restricted to the forms of action: writ of right, assize of novel disseisin, debt and detinue, covenant, the trespass actions, the common law felonies, the prerogative writs __ yet it also entrusted to the chancellor's court in the fourteenth and fifteenth centuries a highly flexible and inchoate body of remedies and doctrines that eventually came to be called equity.These later contrasts should not be allowed to obscure the fact that in the twelfth and early thirteenth centuries, when the English and the French kings first fashioned their respective systems of royal law, these two systems had a great deal in common.
Even later they had much more in common than a nationalistic legal historiography will admit: to a Chinese the differences might still seem minimal compared to the similarities. But in their formative era, each combined in itself many of the contrasting features that later distinguished each from the other. The English had a written summons stating the theory of the plaintiff's action, while the French had an oral summons as well as an oral trial procedure. The English relied on professional narrators and pleaders and judges at the stage of the pleadings, while the French relied on lay judges -- suitors, jurors, and others -- to render the verdict. The interrogation of parties and witnesses under oath was only one method of proof in the French royal courts; among the other methods, some had counterparts in the English system. It is true that the English practice of requiring the jury to determine the facts in advance and to render a unanimous verdict without any trial whatever was unique. However, the French enquete par turbe presupposed that the jury knew, without hearing evidence, the customs of the locality, and its unanimous report on the existence or nonexistence of a custom undoubtedly had an effect, in some types of cases, similar to that of the English jury verdict.There were other similarities. In both France and England, as in Sicily, the central justice of the king (or duke) competed successfully
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with the justice of a multiplicity of feudal lords. The king continued, as in earlier times, to offer recourse against a denial of justice or a false judgment in the court of a lord. To that extraordinary recourse was added, in the latter part of the twelfth century, first in England and then in France, a royal jurisdiction in first instance for a fairly wide range of cases, chiefly those involving violent breaches of the peace and disputes over seisin of freehold land. Moreover, in both countries royal justice was more rational, more professional, and more objective than feudal justice.
Royal justice was more rational in that it excluded, in most cases, trial by judicial duel and by compurgation.
It was more professional in that it was administered by professionally trained judges.
It was more objective in two respects. First, the judges owed an allegiance to the law, and to God, which was considered to be even higher than their allegiance to the king, let alone their allegiance to feudal lords of lesser station. As Bracton's great line states, government is not under man but under God and the law: it is law that makes the king. Similarly, Beaumanoir states that the judge's duty of obedience to his lord does not excuse him from obedience to God, and that the judge is not bound even by a direct commandment of his lord if to perform it would cause him to "lose his soul." In such a case, Beaumanoir says, the judge must leave the service of his lord rather than carry out an order that would violate his duty to God. 84 Such statements reflected the oath, taken by French royal judges in the twelfth and thirteenth centuries upon entry into office, "to respect the good customs of the country." 85 Yet even in learned treatises these statements were not made without risk in an age when kings and lords chopped off heads with impunity.
Second, the objectivity of judicial decisions in the royal courts was strengthened by the emphasis on the need for consistency in application of the law. In both the French and the English royal courts the principle was maintained that like cases should be decided alike. This was not a doctrine of precedent in the technical sense; that came much later, with the systematic reporting of cases and the development of the distinction between the "holding" of a case, which was binding in future similar cases, and "dictum" (or "obiter dictum"), which consisted of reasons given by the court that were not necessary to the decision and therefore not binding in future similar cases.
In the twelfth century, and indeed until the sixteenth and seventeenth centuries, there was no such doctrine of precedent; moreover, reasoning "by example" was considered a less convincing method of reasoning than reasoning from principle. Yet the inferring of principles from analogous cases was a predominant mode of legal reasoning in the twelfth century as in the twentieth. Both Bracton in thirteenthÂcentury England and Beaumanoir in thirteenth-century-479-
France based their respective treatises on thousands of cases with which each had become familiar through a lifetime of judicial experience. 86
This intense interest in cases was linked with the moral principle of equality before the law -- that principle which underlies the maxim, "like cases should be decided alike." Thus Beaumanoir states that where a (similar) case has been judged before, "even if the judgment was made for different persons," it should not be presented to the suitors of the court for judgment but should be decided directly by the bailiff on the basis of precedent, "since one should not render diverse judgments in the same case." 87 The striking similarities between the thirteenth-century treatises of Beaumanoir and Bracton have been overshadowed, in the minds of many commentators, by their differences. The same is true of the striking similarities between the twelfth-century treatise of Glanvill and the books of customary law that appeared in Normandy and France shortly after Glanvill. The two English treatises, one is told, contain the first scholarly statements of the common law of England (although the phrase "common law" does not appear in them); that is, they are centered on the rules applicable in the central royal courts at Westminster-the rules which constitute, as the titles of both books indicate, "the laws and customs of the Kingdom of England." In contrast, Beaumanoir Customs and Usages of Beauvaisians and the earlier French and Norman "custurnals" (coutumiers) are said to be centered on local customs, which differ widely from place to place.
Yet the customs of Beauvais, as conceived and organized and rationalized and applied by the royal courts, were quite similar in general to the customs of the other regions of France, as sifted by the royal courts. Periods of prescription differed, excuses for nonappearance differed, required formalities for transfer of land differed, and many other things differed; nevertheless, the permissible limits of differences in detail were set by the royal courts in the localities and, indeed, in the time of Beaumanoir, by a supreme court in Paris. In addition, there were some uniform customs throughout France, and these were expressly referred to as "the common law." Above all, the general principles were the same.Moreover, the common law of England is usually said to be itself a customary law. It is not easy to know what this means. The English common law is usually traced back to the Assize of Clarendon and other twelfth-century royal enactments; these constitute enacted law, which is the opposite of customary law. What is meant, no doubt, is that the royal enactments established procedures in the royal courts for the enforcement of rules and principles and standards and concepts that took their meaning from custom and usage. The rules and principles and standards and concepts to be enforced -- the definitions of felonies, the concepts of seisin and disseisin -- were derived from informal, unwritten,
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unenacted norms and patterns of behavior. These norms and patterns of behavior existed in the minds of people, in the consciousness of the community. Of course, in that general sense all law rests ultimately on custom and usage.
If one were to specify more precisely the meaning of the phrase "customary law," one would no doubt find that it means something different when applied to the law followed in the royal courts of England from what it means when applied to the law followed in the royal courts in France. Yet it must also mean something similar. There are many illustrations of such similarity. For example, in both England and France the legal concept of seisin was rooted in customary law; in both countries royal courts took jurisdiction over cases of novel disseisin (nouvelle disseisine); in both countries the king used the customary concept of seisin, as embodied in the enacted law of novel disseisin, to wrest from feudal lords jurisdiction over disputes concerning rights in freehold land. There were differences, of course. But the similarities testify to the overlapping of customary law and royal law in both kingdoms. 88
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