The Jurisprudence System

The beginning of the jurisprudence system can be attributed to the conquest of England by the Normans in 1066 A.D., led by William Duke of Normandy. The academic Maitland regarded the invasion by the Normans as a catastrophe which would change the future of English Law . The Normans system of jurisprudence was not as sufficient as the rudimentary English system; the so called law in England was therefore adopted by the invading Normans. The Normans incorporated some of their laws in to English law i.e. Trial by Ordeal, one such method of this was Trial by Battle. The first case of its kind was Wulfstan some 12 years after the conquest of England. In the last case regarding Trial by battle the accused stated “Not guilty; and I am ready to defend the same by my body.” The right to trial by battle was abolished in the same year some 800 years after it was introduced by the Normans. However the attempts to compile and impose a coherent system of jurisprudence on the subjects of England failed as there was an absence of a national judicial system, which is required to practice and dispense the law. The system of jurisprudence saw vast improvement and growth in the 12th century under the reign of King Henry II (d. 1189). Under his reign, the King's court had split in to two benches. The King's Bench and the court of Common Pleas, up until the 1178 the court of common pleas was part of the kings court, the court was first introduced to deal with common pleas and to follow the King around his realm. Henry brought order out of legal chaos caused by the reign of King Stephen (d. 1154). Henry ordered 5 out of 18 judges from the Kings bench to remain curia regis and dispense justice in his absence, and only to refer difficult cases to him. The remaining judges were appointed to travel across England and dispense justice in local cases (circuit courts). The circuit courts were also known as Assize of Clarendon and were created in 1166 A.D. They were introduced so that methods such as trial by ordeal would be slowly abolished. Glanvil believed that the aristocrats of this time preferred trial by battle as there chief mode of trial. Circuit courts were held four times a year known as quarter sessions and would deal with criminal cases. In the modern era these courts can be seen as the equivalent of county courts. The circuit courts gave birth to trials by grand jury, the justices would appoint a jury of twelve knights to pass verdict upon cases. The introduction of the jury system did away with trial by compurgation. Also the introduction of the jury system forced power out of the hands of local barons and into the royal court. The church a vast land owner, which gave it a lot of power also fell foul to the jury system and in 1215 the Fourth Lantern Council, forbade clergy to take part in trials by ordeal. After 1215 any trials by ordeal were tried by jury. However trial by ordeal was officially abolished in 1813. Henry's introduction of Justices to circuit courts was of great significance; finally a person who dispensed justice and law at the highest court of its time was now dispensing the same justice across England. This allowed the laws that were decreed in the royal court, to be brought to the population of England, due to this there was no need at first instance for the subjects to approach the royal court, as the justices would travel to them. In a way this can be seen as the first attempts to lay the foundation steps of a national coherent judicial system in England. Henry II used the services of Ranulf de Glanvil to complete his reforms of the English judicial system. Glanvil held many prestigious tittles in his career ranging from Sheriff of Yorkshire to the Chief Justiciar of England. In Henry's absences Glanvil would act as the regent of England. Glanvil's education familiarised him with Roman and Civil Law. Glanvil is believed to be the composer of valuable works called the ‘Treatise on the laws and customs of the Kingdom of England' (English translation) by various academics. The treaties were compromised by Glanvil to implement Henry's aims and objectives, the treaties also included the procedure of the Kings court. It is widely agreed that Glanvil's treaties are the primary source of English law. Academics such as Scrutton expressed the opinion that English Law did not owe a legacy to Roman law, and that any references of Roman Law in Glanvil's treaties were mere terms that would be applied to English concepts only. Another milestone in the development of the jurisprudence system came in the 13th century by the Jurist Henry de Bracton. The academic Plucknett describes Bracton as “the flower and crown of English jurisprudence after Ranulf de Glanvil.". Bractons most famous work called ‘on the laws and customs of England' (English translation) are seen to be ground breaking, some scholars believe that these works were passed down to Barcton by William de Raley. However the majority of the scholars attribute these writing to Bracton. Bracton introduced the common law approach of Mens rea the intention to commit the crime in to English law. In 1245 Bracton was appointed a justice of the Kings Bench, From 1248 Bracton was also appointed a justice of the circuit courts. Unlike Glanvil, Bracton was an ecclesiastic basically a clergymen. Bracton viewed himself as a priest of law. Bracton influenced not only common law, but also the law of equity. Bracton also contributed towards the administrative process of the judiciary. The jurists Glanvil and Bracton were extremely significant in the development of the English jurisprudence system. There works were not based on theory but actually practise of the law. Glanvil and Bracton are to be viewed as the forefathers of English jurisprudence and that they sowed the seeds for the future development of the English system of jurisprudence. The development of the legal profession is very odd, there is no substantial date of when certain rules were introduced. It was the reign of Henry II which implemented the reforms mentioned above. It was by coincidence that the original eyres were replaced by justices of the Kings Bench and then later on to be replaced by a key group of law practitioners called the Serjeants-at-law. In the medieval times around the 12th century when the legal profession took its first footstep with likes of Glanville and Bracton there was no form of legal education required to become a practitioner, furthermore the universities at time were ecclesiastic and taught Cannon and Roman civil Law. The teaching of English jurisprudence i.e common law in the English universities came much later on. The universities took over where the Inns of Court had left off (Inns of Court to be discussed further). England was the last European country to introduce municipal law in to its academic curriculum. Lectures on English common law began in 1753. The Vinerian Chair introduced the Vinerian professorship of Common Law at Oxford University, with academics like Blackstone teaching it. Other prestigious institutions followed suit over the next 50 years. However all these changes came around in the 18th century. The significance of these changes was vital in developing the law school for the jurist who were to follow on from the 18th century. As we have seen above the academic route only took hold post 18th century in England. The student's pre 18th century could either join a university and learn Cannon and Roman Civil Law, or they could join a Lawyers Inn (later to be known as Inns of Court). Under the reign of Henry III (D. 1216) the teaching of law in London was outlawed and also clergymen banned from teaching law. Lawyers because of this settled as close as possible to Westminster Hall where the Magna Carta decreed a permanent court. Origin of the Inns is not known however academics such as Baker believe that they may have been around since 1340. There were around 20 Inns; however by 1420 four of these Inns had risen to the fore front and were now to be known as the Inns of Court. At first the purpose of these inns was to give the practitioners a place to stay and eat when they were visiting the courts sessions. However slowly the inns started to teach law, lectures and disputations would be held in there halls. Serjenats-at-law and justices of both benches would attend the lectures and disputations and teach. The serjeants-at-law and justices in most cases also received their education from the Inns. At the turn of the 16th century the Inns of Chancery split from the Inns of Court, at first both inns had the same duties to teach students who were interested in becoming barristers, however gradually the Inns of Chancery ceased the practice of teaching barristers. In 1739 and 1825 the foundation of the Society of Gentlemen Practisers and Law Society of England and Wales was found, which regulated the Inns of Chancery. However the Inns of Chancery gradually dissolved, the last Inn was sold in 1903 it was called Clements Inn. The Inns of Court are still here today but do not play any part in teaching law. This is now left to the Universities. The Inns of court, be it Chancery or others plaid a significant role in the development of the law. It was these Inns that paved the way for the future pleader and advocates from whom barristers, serjeants-at-law and finally justices were initially chosen. Without the Inns the process of attaining legal knowledge and attempting to practice law would be a very long process. A legal profession can only come in to existence when the practitioners are practising it for a financial reward i.e for a living. The first ever written names of practitioners of law can be found in the rolls of the Curia Regis. The first written guidelines regarding the honesty of a practitioner of law were written in 1275. Five years later in 1280 the city of London issued guidelines of a oath which the practitioners would follow to keep separate the functions of pleaders, attorneys and essoiners. Up until the 14th century there was no division between the pleaders and attorneys, it was the middle of the 14th century when the divide occurred between the pleaders and attorneys, the divided was a mere natural separation of skill sets of both practitioners. This was a significant development for practitioners of law, this separation laid the foundations that would change the future of the English legal system with the creation of Barrister and Solicitors much later on. This division saw the introduction of the serjeants–at-law. There is no actual date which can be cited in regards to when the serjeants-at-law came in to existence; however it seemed that around 1230 the pleaders of the common Bench were a identifiable class of people, academic Paris refers to them as “the forespeakers of the Bench, who we vulgarly call narratores”. The so called narrators were given the task of reciting the plaintiffs count and to discuss or argue any issues which may arise from it. It was from these narratores that judges were chosen. The significance of this was that, the judges were chosen from the narrators who were actually practicing law before they became judges and knew what was required of them to dispense justice in the correct manner. According to the academic Baker, in the 14th century the narratores were officially given the name the serjeants-at-law or alternatively the order of the coif. The appointment of new serjeants was carried out every few years in batches of around six to nine at a time. The serjeants were chosen from high ranking pleaders (senior barristers of the time) by judges of the court of Common Pleas. The serjeants were summoned by a writ, which ordered the serjeant to be ready to assume “the estate and degree of a serjeant at law”. This was no just seen as a qualification but also as a high honour which would complete with knighthoods and doctorates. The serjeant-at-law held not only the prestigious rank of speaking before the court of common pleas, but they also spoke before the Kings bench, in front of the Kings bench the serjeants were known as the Kings serjeants. Up until 1814 the two senior Kings serjeants were held to have a higher precedent then the Attorney General and the Solicitor General. However the serjeants-at-law slowly became extinct. When the plea's at the bar became written instead of being delivered orally by the serjeants, this saw the start of the decline in their status. The 16th century saw judges were no longer chosen form serjeants-at law. The 16th century also saw the introduction of the Kings (or Queens) Council, the first council appointed was that of Francis Bacon appointed by Queen Elizabeth I in 1594, who was not chosen from the serjeants-at-law. It was in the 17th century that Privy Council declared that the serjeants did not have precedence over the Kings council a further decline in their status. For this reason able apprentices and lawyers did not feel it appropriate to join the coif. It would be easier for the apprentices and lawyers to wear the silk (join the bar) and further their careers then wear the coif of the serjeants-at-law. Finally it was in the 19th century that a statue was passed to open the court of Common Pleas to the whole bar, also the introduction of the High court in 1875, did not require the judges to be appointed from the order of the coif. The last ever judge appointed form the coif was Lord Lindley J in May 1875 for the court of Common Pleas. The order of the coif still remains today but the hierarchy of English law will not appoint any further sergeants-at-law. The serjeants-at-law plaid a significant role in developing the procedures required in applying the law, it is because of the serjeants contributions that the common law is where it is today. The relationship between the serjeants and judiciary was significant as the justices of the time were appointed from the serjeants-at-law. It was this relationship that forged the future of the English system of Jurisprudence. The serjeants transformed the art of pleading in to the technicality it is today. The Barrister of this era owe their resources and educational skills to the accomplishments of the serjeants-at-law. In conclusion the reign of Henry II, Is the most valuable era in regards to the development of the law, however in regards to the development of the profession the era of the serjeants-at-law is the most valuable.

Bibliography:

Books:

Baker, JH 1990, An Introduction to English Legal History, Third edition, London: Butterworths, 1990 Baker, JH, 2002, An Introduction to English Legal History, Fourth edition, Oxford University Press, New York. Baker, JH, 2002. The order of serjeants at law, Volume 5 of supplementary series, Seldon Society, 1984 Fergus M A Greek Roman Empire: Power and Belief under Theodosius II (408-450). Sather , Classical Lectures, Vol. 64. University of California Press 2006, Berkeley: Keynes, S & Lapidge, M, Alfred the Great, Assers life of King Alfred and other contemporary sources, Nineteenth Edition, Penguin Books, London Keynes, S. The Diplomas of King Aethelred ‘then Unready'(1980), Third Series, Volume 13, Cambridge University Press, New York Kirby, DP, Earliest English Kings, Second edition, Routledge, London & New York Frere, S, Britannia : a history of Roman Britain, Fourth edition (1978), Routledge & Kegan Paul, London, Boston Thomas, FS. The ancient Exchequer of England, J. Petheram (1848), London Pollock, F & Maitland, W. The history of English law, Volume I, Cambridge University Press reprint, 1968. Potter, H & Kiralfy A.KR, Historical introduction to English Law, Sweet & Maxwell Ltd; New impression edition (Jan 1969) Powicke, FM, & Fryde EB, Handbook of British Chronology, Second edition, London:Royal Historical Society 1961 Stubbs. W, Select Charters and Other Illustrations of English Constitutional History, Eighth edition, Oxford University, Oxford 1905 Scrutton, TE, ), "Roman Law in Glanvil", The Influence of the Roman Law on the Law of England, Cambridge (published 1885), Plucknett, T. "A Concise History of the Common Law", Little, Brown and Company, 1956 Sullivan, F, Principles of Feudal Law, (1772) The Downing professorship of the law of England at Cambridge Watt, F. Dunbar,PB , Charles, B(1928). The Story of the Inns of Court. Boston: Houghton Mifflin Sainty, JC, A list of English law officers, King's Counsel and holders of patents of precedence, Selden Society, Series 7, London, 1987 Whitelock, D. English Historical Documents p.327-337, Second edition., 1977) ch. IV Gesta Regis Henrici Secundi, ed. William Stubbs (Rolls ser., 1867), vol. I, p. 207

Cases:

Ashford v Thornton (1818) 1 B. & Ald. 405 Wulfstan v. Walter (1077) The Serjeants' Case (1839-40) 6 Bing. N.C. 235; J. Manning, Serviens ad Legem 91840)

Article And Journals:

Holdsworth, SW, A History of English Law, Sweet and Maxwell, London, vol. II. Pp. 311-318, 484-512; vol, VI, PP.431-499; col, XII pp.4-401. Henry de Bracton. De Legibus et Consuetudinibus Angliae (English: On the Laws and Customs of England), Completed 1260 A.D. Cooke, in the 17th century, said it was a distinction between the officium and officium laboris, Co. Inst., vol. II, p.514 Arnolds Chronicles (1811 ed.) p.291 Matthew Paris, Chronica Majora (Rolls ser., 1872-83), vol.III, Completed 1253 A.D. P. 619 Ranulf de Glanvil, Tractatus de legibus et consuetudinibus regni Angliae (English: Treatise on the laws and customs of the Kingdom of England), Volume 1-14, Completed 1188 A.D.

Websites:

http://www.innertemple.org.uk/index.php?option=com_content&view=article&id=36%3Ainns-court&catid=22%3Ahistorical-articles&Itemid=30&limitstart=1 : The Inns Of Court And Inns Of Chancery And Their Records". Inner Temple. Archives vol.XXIV no. 101 (1999) published for the British Records Association, The Archivist, Treasurers Office , Inner Temple, London EC4Y 7HL, Retrieved 10-12-09 http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=680&chapter=51132&layout=html&Itemid=27 : The on line Library of Liberty, Liberty Fund, Inc. 8335 Allison Pointe Trail, Suite 300, Indianapolis, IN 46250-1684, USA http://www.law.harvard.edu/programs/ames_foundation/bracton.html & http://hlsl5.law.harvard.edu/bracton/ ; Harvard University, This page last modified:  12/14/09. Copyright © 1999–2009 The Ames Foundation. All rights reserved. Retrieved 10-12-09 http://www.british-history.ac.uk/Default.aspx - Copyright © 2009 University of London & History of Parliament Trust, Retrieved 10-12-09

Statute:

Statute of Westminster I, c. 29 Statute of Westminster. 9 & 10 Vict., c. 54, TRIAL BY BATTLE ABOLITION BILL. HC Deb 19 March 1819 vol 39 cc1097-105 Magna Carta, 1215, Clause 17