English Legal History and its Materials

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A Land Not of a Single Peace but of Many

A. Harding wrote, “England was not a land of a single peace but of many,” (Harding 15) alluding to the diverse origins of English history that would develop into its “Englishry” through an adaptable but enduring set of legal principles. The law developed out of the reconciliation of three elements: First, changes in the culture caused by conquering; second, that the law developed out of a written language, distinct from the spoken languages of the common people; and third, the tradition of legal continuity that ensured the longevity of the legal system despite frequent external changes. (Baker 2) While the takeovers suggest that Maitland is correct as to the diverse origins of English history, it is the use of the language and the endurance of the legal system through these takeovers that allowed the Englishry of the law to coalesce.


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A Land Not of a Single Peace but of Many

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 -- By DexterXHeeter - 28 Nov 2017
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This is pretty good as a response, but it can be made better.

The first route to improvement is a general edit to tighten the writing. Both at the paragraph and the sentence level, more brevity will also mean more clarity. Paraphrasing Baker, as in "The law developed out of the reconciliation of three elements: First, changes in the culture caused by conquering; second, that the law developed out of a written language, distinct from the spoken languages of the common people; and third, the tradition of legal continuity that ensured the longevity of the legal system despite frequent external changes," leads to longer, mushier sentences than you need. (Note also that Anglo-Saxon legal materials are in Anglo-Saxon, which is "the language of the people.")

The second route to improvement is to focus more sharply on the sociological formulations. "From early Roman influences to the expansion of the law under Norman rule, England both absorbed and destroyed previous cultures in an attempt to create a unified society." Leaving aside the gap of almost 800 years from the Romans to the Norman invasion, this sentence literally says that "England attempt[ed] to create a unified society," which is nonsense as social science. Who is acting over these many centuries, and with what purpose? "England," as a personification, is not helpful.

 
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A Land Not of a Single Peace but of Many

A. Harding wrote, “England was not a land of a single peace but of many,” (Harding 15) alluding to the diverse origins of English history that would develop into its “Englishry” through an adaptable but enduring set of legal principles. The law developed out of the reconciliation of three elements: First, changes in the culture caused by conquering; second, that the law developed out of a written language, distinct from the spoken languages of the common people; and third, the tradition of legal continuity that ensured the longevity of the legal system despite frequent external changes. (Baker 2) While the takeovers suggest that Maitland is correct as to the diverse origins of English history, it is the use of the language and the endurance of the legal system through these takeovers that allowed the Englishry of the law to coalesce.

Due to the relative size of England, and its isolation as an island, it rarely took more than a single battle to gain control and the current occupants did not have the ability to retreat into Russia or Asia as they did in continental Europe. Much of England’s early history was a myriad of invasions, by people speaking various languages and often pushing the current occupants out of society altogether.

As early as King Alfred of Wessex, however, the government noted a need for unification and developed a system of law that would facilitate transfers of power. (Baker 3) When William the Conqueror became king in 1066, there was a shift the Norman people partially embraced the Saxons as subjects by impressing their rule upon them rather than pushing them out entirely. This partial acceptance of the diversity of the English people, even through Norman subjugation, was an acceptance of a relatively unified England with the beginnings of a legal system already in place. (Baker 12) The law, therefore, developed with an understanding of the Norman tradition of murder and conquer as well as a need to maintain peace once an inevitable change of power occurred.

As early as the sixth century, when Roman missionaries arrived in Kent, the law began to reflect the “Roman style,” (Harding 13) placing the clergy highly in society by providing them with the most compensation under the law when their property was damaged or taken. Despite the fact that England was never a part of the Roman world, Harding suggests that these early laws created a theme of the king’s “peace” with which he would be able to extend his influence over the society that would carry forward as the law developed. (Harding 15) The Anglo-Saxons also recognized a theme of peace, which would be used by later Norman rulers as a legal basis to snuff out any potential rebellion that would question their claim.

By asserting a legal claim to the throne, William was able to argue that his conquering of England was an extension of the king’s peace. His ascension to the throne was merely a succession and the people became his subjects under both the current legal framework and any additional laws he should put in place. By the time of Henry II, the law was expanded to create a form of the king’s justice, in which freeholders could come to come seek the king’s judgment on matters concerning property and disputes between people. The continuity of the legal system, despite changes of power, meant that even with diverse origins and political turmoil, an “Englishry” could be maintained over time. Rather than becoming a wholly Anglo-Saxon country, and then a wholly Norman country, devoid of outside influences, the legal framework of the king’s peace remained a thread that would tie each successive conqueror to the previous and to the next, creating a cohesive England over time. As the nation changed hands and kings, there were various spoken peasant languages throughout society. While the Romans were the initial source of English custom, as the local people did not have a written language, the Anglo-Saxons introduced written law after King Aethelbert I of Kent. (Baker 2) The Normans spoke French, but they retained Latin as the written language. Since many of the peasant languages had never been written down, the use of Latin, which was used to codify everything from poetry to theology, meant that the development of early laws included a written language that conveyed wisdom.

We noted in class that the Englishry of the English law is the Englishry of the English language as well. The English word “law” was given to the language after the land was conquered by a Danish king. (Baker 3) The English form of government, the parliament, was originally borrowed from the French councils, or conciles. (Robert Tombs, The English and Their History 49) As England changed, so too did the language, borrowing aspects of other languages and inventing its own, such as illogical spelling or lack of inflection for nouns. While the French treated their language defensively in an attempt to keep the language “pure,” and the Dutch treated theirs comically, changing spellings thrice in a generation, the English language took words shamelessly from other cultures to develop a language of their own and reveled in its use. Just as the country was conquered again and again, the English that would evolve out of the written legal Latin would take with it fragments of other cultures that it sought to integrate into a distinctly English language.

The fact that England was subject to conquer for much of its history contributed to the diverse origins of its law. From early Roman influences to the expansion of the law under Norman rule, England both absorbed and destroyed previous cultures in an attempt to create a unified society. The legal system, built on the concept of the king’s peace facilitated the transfer of power from one regime to another to create an “Englishry” that spanned beyond the lives of mortal kings. While the endurance of the legal system remained static, the use of a dynamic written language both created and maintained a record of the static legal system while reflecting the diversity of the sources that created it.

-- By DexterXHeeter - 28 Nov 2017


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