Greece, Rome, and the Bill of Rights (11 page)

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Authors: Susan Ford Wiltshire

Tags: #Political Science, #General, #History, #Law, #Reference, #Civil Rights, #test

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breakdown occurred in the Renaissance and Reformation, the way was clear for the flowering of these seeds of thought.

56

The pervasive presence of natural law and Roman law in medieval Christian civilization thus helped enhance the possibilities for human freedom because they kept alive the possibility of conflicting loyalties that eventually would clear a space for the individual in society.
In the meantime, a theory of individual rights emerged from contemporary events in feudal medieval England, where Roman law was giving way to common law and creating yet another set of conditions conducive to human liberty.

 

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Chapter 3
English Beginnings: Common Law and Magna Carta
Magna Carta is such a Fellow, he will have no Sovereign. S
IR
E
DWARD
C
OKE
The Romans considered Britain to be so far removed from the center of civilization that the poet Catullus (c. 8454
B.C.
) emphasized the separation of the "faraway Britons" by placing the adjective and noun, ultimos ...
Britannos
, in two different lines of one of his poems.

1
This geographical remove helps account for the very different historical circumstances that shaped the rise of English common law.

English feudalism, evolving at a distance from the Roman jurisprudence that dominated the Continent, brought forth the gradual development of practical legal institutions that ultimately enhanced the role and status of the individual. From as early as the twelfth century in feudal England, common law shielded individual liberty against the aspirations of monarchs because it involved the element of consent.

 

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Feudalism and the Rise of Common Law
In many ways medieval England exhibits in fact if not in theory an ascending form of governance. If the people were supposed to be "subjects," they may frequently not have known it since they were so busy with the daily realities of conducting public business, participating in guilds in which individuals had full membership and elected their own officers, and practicing self-governance in the villages. Customary laws, which as the term implies were the product of customary usage, permeated the affairs of the island, and the rulers tended to give at least tacit approval to these lay laws by having "all the laws in their breasts." The practical deployment of individual capabilities among persons in the lower strata of society thus provided a bridge between the medieval and humanistic theses.

2

Feudalism was contractual in nature, a matter of oaths and loyalties exercised in both directions between lords and vassals. The emphasis was on mutual obligations, and the vassal had a means of resisting a lord who behaved as a tyrant. This was called the
diffidatio
, a withdrawal of
fides
or loyalty from the lord. This practice was personal, however, not institutional. The intense personalism of these arrangements contradicted the descending form of government and in some ways diametrically opposed it.
3
As theocratic kings the medieval lords had absolute power. As feudal lords, however, they were one among others.
4
Within this bargaining context, laws were arrived at by counsel and consent, often by cooperation and teamwork framed by the personal relationships between the king as feudal lord and his chief tenants.
5
English common law is therefore "common" in more than one sense. It helped produce a common culture within feudal society, but it was also common as opposed to fancy. Because it was earthbound and daily instead of speculative and abstract, it tended to pay greater respect to the rights of individuals. These conditions made possible the resurrection of Aristotle's "natural man" and the emergence of individuals as citizens.

 

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English contributions of learned tracts to political theory were few in comparison with the French and Italian. One reason for this was the relative insignificance in England of Roman law, which served as the focus and incentive for a great deal of legal theorizing. The tension between government and the governed across the Channel also took different and less intense forms in England, at least after the time of King John and Magna Carta in the thirteenth century.

6

Natural law doctrine was later evoked in England to provide justification for practices historically established within feudalism. This could occur only because the underlying conditions were already in place. ''No natural law theory," insists Ullmann, "no considerations of doctrinal character, could have exercised influence if the historic presuppositions had not been favorable."
7
The differing historical conditions help explain why individual rights evolved as they did in England in contrast to the Continent. The outcomes of the later French and Russian revolutions would be very different because they grew out of ideological abstractions rather than a long history of practical accommodations concerning the limits of power.
Roman Law in England
In the early twelfth century, King Henry II (reigning 11541189) established royal courts to consolidate his power, thus beginning the unification of national law. Henry was the first of a series of kings under whom constitutional governance in England began to take shape. Upon accession to the throne he crushed a group of rebellious barons, but almost immediately his authority was challenged again, this time by the Church at Rome represented by Thomas à Becket. This challenge resulted from Henry's determination to limit the privileged position of the clergy. After arranging for Becket's murder, Henry continued to strengthen his secular control by setting up a rudimentary civil service.
8
This process was aided by the fact that judicial decisions began to be recorded, creating an accruing body of law.

 

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Lawyers in the king's courts came to depend not only on the scribbled notes of their colleagues but also on two learned law books, one written by Glanvil during the reign of Henry II and another by Bracton in the reign of Henry III in the thirteenth century. The result of these changes was that Anglo-Saxon common law, rather than the revised Roman law, became the supreme law of the land.
This does not mean, however, that there was an absence of Roman legal ideology. Hans Julius Wolff points out that Roman concepts were by no means completely barred and that Bracton dealt with some of them without even considering that they were something foreign. The Roman importations, however, did not interfere with the development of English law along the lines that had been established by the courts from the time of Henry II.

9

Roman law with its attendant principles of natural law had been brought into England through the Church, whose clerics were the first justiciars of English law. An Italian named Vacarius taught Roman civil law and canon law at Oxford in the middle of the twelfth century and was enormously popular. Robert N. Wilkin holds the minority view that Roman law had a greater impact on the law of Britain than on that of the Continent:
It [Roman law] was so completely accepted in England that Englishmen thought it their own. It never was foreign after the twelfth or early part of the thirteenth century. It had an extensive influence on Bracton and through him on Coke. While we think of Coke as particularly a champion of the common law, his basic principles were the same as those of the Roman law and natural law. Through their acceptance into the common law of England natural-law principles became a part of the constitutional history of England.
10
Others take a more measured view of the impact of Roman civil law on English common law. Paul Vinogradoff holds that while it exercised a very great influence during the critical period in the twelfth and thirteenth centuries, when the foundations of the common law were

 

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being laid, civil law did not become a constituent element of English common law acknowledged and enforced by the courts.

11
Whatever the degree of impact, the situation was that the legal advisers to the Crown ordinarily combined a knowledge of Roman legal theory with practical experience of English realities.
12

Hans Julius Wolff agrees that England was the major exception to Roman law as the law truly "common to all" but suggests that even there Roman law could supply the rules needed to fill the gaps of national law. He traces the scholarly interest in Roman law back to Lanfranc, the chancellor of William the Conqueror and archbishop of Canterbury, who had studied with the pre-Glossator legists in Italy at Pavia.
13
The study of Roman civil law in England progressed so far that the Church came to feel threatened by what it saw as the spread of secular learning. Two papal bulls, one by Honorius III in 1219 and another by Innocent IV in 1254, were directed against the teaching of Roman law in Paris and in "neighboring countries," including England. In 1234 Henry III forbade the teaching of civil law in London. In spite of these prohibitions, however, the teaching of Roman civil law was never entirely discontinued in the major centers of learning in England.
One of the most important English contributions to Roman law was Bracton's
Laws and Customs of England
, especially his discussions of
ius civile
and
ius gentium
. Even here, however, the influence of Roman law is found not in quotations from the
Digest
or the
Code
, but rather in maxims, many of which had come into England through the medium of canon law. The real measure of the extent of that influence lies in the development of juridical ideas, and here the Roman influence on English doctrine is considerable.
14
The old English Books with their grants of private property exempted from folkright are also Roman imports brought in through the Church in conjunction with the kings. The impact of these importations was to alter the earlier tribal custom of land tenure in England by substituting forms of Roman property law.
15

 

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