THE ENGLISH COMMON LAW PURELY ENGLISH?
Having argued for the transnational character of the law in meÂdieval and early modern Europe, I must now face the objection that there is one obvious exception. Surely, the critics will say, England is the great exception, since here we have a strictly naÂtional system of law that, except for a brief period at the very beginning, is quintessentially English, administered by English courts, developed by English judges, kings and parliaments and recorded in typical English Year Books, law reports and treatises.
It even used its own cryptic and increasingly archaic language, called Law French, that was understood by a dwindling minority in England and diverged more and more from the French spoÂken on the Continent. All this is basically true and nobody denies that from the thirteenth century onwards the English common law was a truly national system, that was eventually exported by English people who settled in remote continents: English law was neither local nor cosmopolitan, it was national and it was English (not Scottish, Welsh or Irish): it was the law of one parÂticular nation state, one of the earliest and most enduring on the European scene.Yet, here again, the true picture is less absolute than a first contact would make us believe. Indeed, English law also underÂwent the main international currents that swept all over Europe, as we shall try to demonstrate. Thus it is important to realize that the common law is not the only legal system known and followed in England. Indeed, English ecclesiastical courts apÂplied the canon law of the Latin Church, even though customÂary variations were observed in the English Church as in many others. The old controversy between the Oxford medievalist and bishop, William Stubbs, and the Cambridge legal historian Frederic William Maitland was laid to rest long ago in favour of the latter, who rejected Stubbs’ thesis that medieval England had applied its own national ecclesiastical law.19 Moreover, the Court of Chancery, which originated in the fourteenth century and developed an important jurisdiction of its own, did not apply the common law, but produced its own equity, which in course of time became a distinct body of law, and followed its own rules of procedure, which were closer to the Roman-canonical than the common-law model.20 The Court of Admiralty also followed a course of its own and applied the European ius commune, as was natural because of its concern with international shipping on the high seas.21 Also Roman and canon law were taught at Oxford and Cambridge where future diplomats and bishops
19 Elton, F W Maitland, 69—79.
The occasion for Maitland’s research was the 1883 report of a Royal Commission of which Stubbs was a member, which declared that â€?the canon law of Rome, though always regarded as of great authority in England, was not held to be binding on the courts’ in the Middle Ages (a conclusion supported by Stubbs in a long Historical appendix). Maitland’s thesis can be found in his Roman canon law in the ChurchofEngland (London, 1898). The problem, far from being merely historical and academic, touched upon some raw political and religious nerves.20 The most fundamental study of the Court of Chancery in recent years can be found in the Introduction in D. E. C. Yale (ed.), Lord Nottingham's Chancery cases (London, ι 961, Selden Soc. Publ., 79), 7-207.
21 See the recent fundamental work of M. J. Prichard and D. E. C. Yale (eds.), Hale and Fleetwood on Admiraltyjurisdiction (London, ι 993, Selden Soc. Publ., ι 08), especially the 250-page Introduction. SirJulius Caesar, whose career has been analysed extensively were trained in the ius commune. Nor was the common law itself immune from Justinian’s influence: its main doctrinal work in medieval times, the aforementioned Bracton’s Treatise on the Laws and Customs of the Realm of England, is deeply marked by civilian learning, especially Azo’s Summa codicis?2 The great common lawyers of modern times, such as Hale and Blackstone, were well aware ofcontinentaljurisprudence and so were leading judges in the nineteenth century. Whether this justifies calling English law European23 is a moot point, but it can certainly not be said that English law developed in splendid isolation.24
in recent times, sat as a judge in the London Court of Admiralty from 1582 to ι 606. See L. M. Hill, Bench and bureaucracy. The public career of Sir Julius Caesar, 1580—1606 (Cambridge, 1988); A. Wijffels, â€?Sir Julius Caesar’s notes on Admiralty cases: An alternative to law reporting?’ in C. Stebbings (ed.), Law reporting in England (London, Rio Grande, ι 995), 89-11 2;A.Wijffels, â€?Julius Caesar’s notes on POWS’, LegalHistory Review 65 (j997. 349-72.
22 The bibliography on Bracton is large. See for some recent assessments J. L. Barton, â€?The mystery ofBracton’, JournalofLegalHistory 14 (ι 993), no. 3, special issue, ι —142; H. H.Jakobs, De similibus ad similia bei Bracton undAzo (Frankfurt, ι 996, Ius Commune Sonderhefte, 87).
23 So R. Zimmermann, �Der europaische Character des englischen Rechts. Historische Verbindungen zwischen civil law und common law’, Jeitschriftfur Europaisches Recht (1993), 4-51.
24 We shall come back to the differences between common and civil law in chapter 3.