The author is certainly not fooled by the cleverness of those who use the law for their own ends; the people mentioned are mainly of good education and social standing. Unjust litigation by dishonest plaintiffs is criticised as much as lying defendants who try to delay the judgement; perjury, or bearing false witness after swearing on the Bible, is naturally condemned. But no one in the system, it seems, can escape criticism, since the whole legal process from start to finish appears to be rife with corruption.
But it should be recalled that he is writing a work of morality designed both to guide confessors and to move the faithful to repent and confess their misdeeds. Although the impression created is quite realistic, he does not actually say in so many words that he is speaking from personal experience; he does not even say that these things happen frequently, only that they are sins requiring confession, which is the main thrust of his argument. As usual in such cases, the focus is on evil, not on good, and there is so much criticism of what is wrong that nothing seems to be right; but a one-sided opinion of the lawcourts would no doubt be unfair, just as much then as it would be today.
One of the features of this book, making it more like a series of sermons and less like the treatises of vices and virtues on which it is ultimately based, is the consistent use of exempla , sometimes quite long, which end each chapter. The theme is Justice and Mercy, once again drawing heavily on legal language and showing familiarity with the judicial system, and establishing an interesting contrast between the civil and ecclesiastical courts. The following is a brief summary. This leads to a further exhortation to sinners to do penance for forty days, allegorically by seeking sanctuary in a church and remaining there throughout Lent, which leads to spiritual renewal through the sacrament of penance.
The fortieth day is the Easter Vigil. The coroner priest then places a cross penitence in his hands good works and sends him off on the royal road the Ten Commandments. Although pursued by his enemy Satan , he keeps to the straight path, looking neither left nor right the world and the flesh , holding high the cross an allusion to Matt. With the exception of people seeking a marriage annulment, few ordinary Catholics today ever have recourse to canon law, or have any direct contact with it.
It can hardly be said to affect the day-to-day lives of most modern Catholics, nor are they much conscious of being concerned by it despite a recent surge in media interest in the relationship between canon law and civil law. The contrast with medieval society could hardly be greater, when, as we have seen, the causes of excommunication were very numerous, and the consequences, both social and political, were grave for rich and poor alike. English monarchs from John to Elizabeth I were disturbed by the political consequences of excommunication, which technically dispensed their Catholic subjects from obedience in civil as well as religious affairs.
It would seem inevitable that faith and law belong together in the medieval mindset. In a monotheistic culture, belief in God as the Creator of the Universe, and of life itself, underlies social relations.
Early English Laws: Texts
Such a belief could not exist in a vacuum but has transformative power. It may be born in the heart of the individual, but it must be shared with others; it then becomes a two-way affair, seen as the foundation of law a way of regulating social exchanges , but in turn it becomes subject to human judgement and action. He certainly does not paint a pretty picture of medieval life and law, though perhaps not much has changed in this respect in the modern age, at least if we take into consideration the way abuse of the judicial system is often represented in popular television drama.
Primary Sources Brandeis, Arthur, ed. Friedberg, Aemilius, ed. I for the Decretum Gratianum. Hanna, Ralph, ed. Kristensson, Gillis, ed. Oliver, Lisi, ed. Peacock, Edward, ed. Instructions for Parish Priests , London, , rev. Powell, S. Powicke, Sir Frederick M. Cheney, eds. Wilkins, David, ed.
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Jacqueline Hamesse et al. Cross, F. Livingstone, eds,. Kelly, John N. Salisbury Cathedral Edward Peacock, London, , rev. I, ed. Livingstone, Oxford: OUP, 3 rd ed. See Anne Duggan, "Roman, canon and common law in twelfth-century England: the council of Northampton re-examined", Historical Research , vol. Since Innocent had had to deal with two antipopes, Anacletus II and Victor IV briefly in , he was certainly anxious to establish clear-cut rules and regulations about all aspects of canon law.
One of the purposes of the Lateran Council of was to annul all decisions and acts which Anacletus II had promulgated. Using Friedberg, he identifies most of the articles of canon law quoted in the Middle English text. Powicke and Christopher R. Redyng these are the Peckham Constitutions. A Reading Edition , ed. The subtitle, "a reading edition", somewhat unusual for an EETS volume, arises from the fact that this edition is based on only five of the forty known manuscripts of this popular verse text. The biblical source of the image is Ps.
The oldest Anglo-Saxon law codes, especially from Kent and Wessex , reveal a close affinity to the laws of the North Sea peoples—those of the Saxons , Frisians , and Scandinavians. For example, one finds a division of social ranks reminiscent of the threefold gradation of nearby peoples cf.
Frankish law becomes a powerful modifying element in English legal history after the Conquest, when it was introduced wholesale in royal and in feudal courts. The Scandinavian invasions brought in many northern legal customs, especially in the districts thickly populated with Danes.
Beginnings English Law by Lisi Oliver
But, on the whole, the introduction of Danish and Norse elements, apart from local cases, was more important owing to the conflicts and compromises it called forth and its social results than on account of any distinct trail of Scandinavian views in English law. The Scandinavian newcomers coalesced easily and quickly with the native population. The direct influence of Roman law was not great during the Saxon period: there is neither the transmission of important legal doctrines, chiefly through the medium of Visigothic codes , nor the continuous stream of Roman tradition in local usage. But indirectly Roman law did exert a by no means insignificant influence through the medium of the Church, which, for all its apparent insular character, was still permeated with Roman ideas and forms of culture.
The Old English "books" are derived in a roundabout way from Roman models, and the tribal law of real property was deeply modified by the introduction of individualistic notions as to ownership, donations, wills, rights of women , etc. Yet in this respect also the Norman Conquest increased the store of Roman conceptions by breaking the national isolation of the English Church and opening the way for closer intercourse with France and Italy.
The Anglo-Saxon legal system cannot be understood unless one realizes the fundamental opposition between folk-right and privilege.
Folk-right is the aggregate of rules, formulated or latent but susceptible of formulation, which can be appealed to as the expression of the juridical consciousness of the people at large or of the communities of which it is composed. It is tribal in its origin, and differentiated, not according to boundaries between states, but on national and provincial lines.
There may be the folk-right of West and East Saxons , of East Angles , of Kentish men, Mercians , Northumbrians , Danes , Welshmen , and these main folk-right divisions remain even when tribal kingdoms disappear and the people are concentrated in one or two realms. The chief centres for the formulation and application of folk-right were, in the 10th and 11th centuries, the shire-moots, while the witan of the realm generally placed themselves on the higher ground of State expediency, although occasionally using folk-right ideas.
The older law of real property, of succession, of contracts, the customary tariffs of fines, were mainly regulated by folk-right; the reeves employed by the king and great men were supposed to take care of local and rural affairs according to folk-right. The law had to be declared and applied by the people itself in its communities, while the spokesmen of the people were neither democratic majorities nor individual experts, but a few leading men—the twelve eldest thanes or some similar quorum.
Folk-right could, however, be broken or modified by special law or special grant, and the fountain of such privileges was the royal power.
Alterations and exceptions were, as a matter of fact, suggested by the interested parties themselves, and chiefly by the Church. Thus a privileged land-tenure was created— bookland ; the rules as to the succession of kinsmen were set at nought by concession of testamentary power and confirmations of grants and wills; special exemptions from the jurisdiction of the hundreds and special privileges as to levying fines were conferred.
In process of time the rights originating in royal grants of privilege overbalanced, as it were, folk-right in many respects, and became themselves the starting-point of a new legal system—the feudal one. Anglo-Saxon England did not have a professional standing law enforcement body analogous to modern police. In general, [ citation needed ] if a crime was committed then there was a victim, and it was up to the victim — or the victim's family — to seek justice. However, after the tenth century there were some changes [ citation needed ] in Anglo-Saxon England.
All shires , or counties, were subdivided into hundreds. These hundreds were subdivided into tithings. The three types of division had three types of representatives as well: the tithings had a tithingman, the hundreds a hundredman and the shires a shire-reeve.
They met every four weeks. But still the biggest power [ citation needed ] of seeking justice lay in the hands of the victim or the victim's family. The judicial functions of the Anglo-Saxon legal system was mainly practiced [ citation needed ] by courts. Once a charge had been brought, it had to be heard by a court [ citation needed ] which would decide whether or not a crime had been committed and, if so, what action was necessary.
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The hundred court met every 4 weeks [ citation needed ] but the shire court only met twice a year. Another feature of vital importance in the history of Anglo-Saxon law is its tendency towards the preservation of peace. Peace is considered not so much a state of equilibrium and friendly relations between parties, but rather as the rule of a third within a certain region—a house, an estate, a kingdom.
This leads on one side to the recognition of private authorities—the father's in his family, the master's as to servants, the lord's as to his personal or territorial dependents. On the other hand, the tendency to maintain peace naturally takes its course towards the strongest ruler, the king, and we witness in Anglo-Saxon law the gradual evolution of more and more stringent and complete rules in respect of the king's peace and its infringements.
In course of time the natural associations get loosened and intermixed, and this calls forth the elaborate legislation of the later Anglo-Saxon kings. Regulations are issued about the sale of cattle in the presence of witnesses. Enactments about the pursuit of thieves, and the calling in of warrantors to justify sales of chattels , are other expressions of the difficulties attending peaceful intercourse. Personal surety groups appear as a complement of and substitute for more collective responsibility.
The hlaford and his hiredmen are an institution not only of private patronage, but also of supervision for the sake of laying hands on malefactors and suspected persons. The landrica assumes the same part in a territorial district. Ultimately the laws of the 10th and 11th centuries show the beginnings of the frankpledge associations, which came to influence an important part of the feudal age.
The English dialect in which the Anglo-Saxon laws have been handed down is in most cases a common speech derived from West Saxon. By the tenth century the West Saxons had become predominant among the Anglo-Saxon kings, and their lands were home to some of the most developed religious and monastic centres on the island.