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assault him there, was a breach of his peace. The origin of the feeling about this may go clear back to the animal world. A dog, or even so timid a beast as a rabbit, will fight better on his own ground. The aggressor frequently acts as if he knew that he was out of his own bounds.
So the king would have an especial right to have peace in his own house. It was an easy step from this to extend the house that the king lived in to the house or precincts of the king's court; then to the king's highway, to the king's servants, and to the markets held under his protection. Finally, what was a privilege of the few, and of a small region, was held to cover all men and all places in the kingdom. If a man wanted to get the powerful help of the king's courts, he could claim that the king's peace had been broken. This made it far more dangerous to rob and kill. At first
peace ” of the king was supposed to hold only while the king was alive. When a king died there was no king's peace until the new king was crowned. Hence, there was sometimes a sort of
as we say now with reference to shooting game.
When Henry I died in 1135 " there was tribulation in the land, for every man that could forthwith robbed another."
Besides punishing crime, the state aimed also in many ways to prevent crime. A curfew law compelled all to cover up their fires and stay in after eight o'clock in the evening. One of the chief means of keeping order was a system of small responsible groups. By an ingenious change of the old principle that a man's kin were responsible, the state required every man, with a few exceptions, to belong to a small group called
frankpledge,” or sometimes " tithing,” which could be held responsible. When any man was accused of a
Curfew and frankpledge
crime and did not appear for trial his tithing had to pay a fine. It can be imagined that the “ tithingman,” the head of this group of ten or twelve, would keep a close watch over the group. It is interesting that the early New England towns always elected a tithingman whose chief duty seems to have been to keep order in the meeting-house.
(3) The state brought about a Common Law. How Common did it come about that one system of law held for Lew the whole country? In early days there were a great many different“ customs ” of different places or groups, but no single law of the land. A “court” was a sort of town meeting or county meeting. There were no lawyers, no judges, no jury, no witnesses. The meeting voted what should be done. Now the king was a great landholder and also had a great many officers. He, then, held a court just as a lord or sheriff held a court.
If the king could not always hold court himself he had representatives to preside for him. The next step was to send these justices around the country to hold court. So long as each village or county held its own court, it would keep its own customs. The northern part where the Danes settled had a Dane law, the county of Kent had its customs, the West had its customs. Some towns would have special tolls and rules. But when the king's justices judged cases they decided by what they called the custom of England. They followed the same rules, no matter where they were holding court. These rules or customs which were common to the whole country were called “ law." The king's courts which worked out this common law had a reason for hearing as many cases as they could. It was so poor a reason that it seems quite un
The king's court
dignified, not to say disgraceful. The reason was that
But if you do not have a monopoly, you cannot have a large business unless you sell what people want. The king's court did not at first have a monopoly even of murder trials. There were other courts. But it was often the case that a man could not get justice in the other courts. Then he would try the king's court, which was often more satisfactory than others. In time it came to be held that any one might purchase a “writ” of the king's court, and by it try to get justice done. Though if a man was not exactly sure what to call the injury that had been done him, he ran a risk of buying the wrong document. It was something like buying shoes for another person without knowing what size would fit. We might think justice should proceed by asking both sides simply to tell their stories, and then having the judge ask questions and decide what is fair. This was not the way the courts got at it. The man who brought the case had to charge the other with some specific kind of wrong, and then prove this. But the important thing was that all the king's subjects had a right to claim his justice.
Why was the common law better than the old custonis? There is more authority in law. It comes to us now as the command of the whole people. In early times it came as the command of the king. And because the king was usually believed to be appointed by God to rule, his commands were regarded as sacred. This made men more afraid to break the law. With the king's authority back of it, the common law was thus better
Majesty of the law
adapted to the larger group. Custom could control small groups who spoke the same language, and were all kin or neighbors. It would not have been equal to the task of controlling large groups made up of different races or tribes, speaking different dialects, not knowing each other, and not having common ancestors or common traditions.
The common law was thus stronger than custom. It Law was of course likely to favor the king and the ruling fairer
than class. But there were two forces at work to make it
custom fairer than the customs of smaller groups.
The very fact that it was national helped to make it fairer. If a law is going to affect a whole realm, people will be more careful in making and executing it, and judges under such a law will also be less likely to be influenced by prejudice against enemies, or by favor for their friends.
And another thing that helped was that judges were appointed to give their time and thought to hearing cases and declaring the law. These judges were at first churchmen-bishops or clerks (as the clergy were then called). They studied not only the customs of England, but the law which the church used. They studied, many of them, the old Roman law which grew up when Rome ruled the civilized world. And they got from this the idea that cases should be decided not only by custom but by what was reasonable as well. So there was a little element of progress along with the idea that the old customs ought not to be changed. Men are so fond of what is old and so fearful of the new that it is very hard to introduce a change in law, even when it is known that the old way began in savage and barbarous days.
The common law became also a defense of liberty.
It might be supposed that the judges who were appointed by the king would always be on his side, if there was
contest between the king and other parties. But strangely enough they came to think much more of following the rules and customs of the realm than of doing what the king wished. The very fact that the law was common to the whole country made it a stronger defense when men relied upon it to aid them in resisting the king, just as at first it was a stronger instrument for enforcing order. The way in which the jury system came to be introduced will be described in a later chapter. But it may be mentioned here as one of the ways in which the king and the state helped on the cause of liberty, although it was not intended for this purpose and was at first stoutly resisted.
The state had a great deal to do with changing the plan of holding land. The early idea was that of holding land in common by a clan or village. Our present plan is what we call private ownership. Except in such cases as parks, public forests, school grounds, and a few other public plots, all land in this country is privately owned. By the old plan it seemed that no one really had a right to sell land, for this would be depriving the children of the clan of their rights. Today we buy and sell land freely; and this is in many ways an advantage. For it certainly stimulates a man to improve land if he knows that he himself will gain by draining, fencing, and enriching it. Moreover, when land is bought and sold freely it is more likely to get into the hands of men who will make some use of it and will not let it lie idle. How has it come about that we now own land? We