Feudal law in England: "common law", "law of equity", statutory law. Sources and main features of feudal law in England The main institutions of feudal law in England

Medieval law was formed in the form of customs, which were the main source of law. The Norman Conquest had a great influence on Anglo-Saxon law and marked the beginning of the formation of a unified legal system. This system was called "common law". It developed under the influence of Anglo-Saxon and Norman customs and decisions of royal courts. She was also influenced by canon law. Common law rules regulated a wide range of social relations. The rules of the common law were enshrined in written records of judgments. From the second half of the 13th century, reports began to be published annually, which created the prerequisites for the formation of the main institution of English law - judicial precedent. The institution of royal orders had a great influence on the development of law.

The plaintiff turned to the king for the protection of his rights, and the king, for a fee, could accept the claim for consideration. Royal orders created the conditions for the formation of a special system of norms of "rights of justice". The subject, in case of violation of his interests by the court, turned to the king. The king, and later the lord chancellor, considered appeals and made decisions, and they were not bound by valid law, but could be guided by Roman, canon law and the voice of their own conscience. The most important sources of law were normative acts emanating from the king and parliament.

Sources of law. English law was distinguished by intricacy, complexity and casuistry. Customary law becomes the main source of law. At an early stage in the formation of law, kings issued orders on a case-by-case basis, on the basis of which the parties could justify their rights. The practice of the royal courts became another source of law (judicial precedent). Royal legislation or statutory law was also important. Later, the name of the statute was assigned to an act passed by parliament and signed by the king. The norms of commercial and canon law must also be attributed to the sources of medieval English law.

Property rights. In England, land relations contained a number of features. Knightly service was a noble holding. From the 12th century, personal service was replaced by the payment of "shield money" and the transition to a mercenary army. The institution of trust property arises, which means the formal transfer of ownership of property to a person, the right to manage it and use it in the interests of the owner.

Law of Obligations. Under English law, every contract is an agreement, but not every agreement is a contract. In 1589, the Stenborough v. Worker court made an important decision according to which “a promise given in exchange for a promise can be a cause of action”, that is, from now on, a person who has not fulfilled his obligation for the promised or given equivalent , was obliged to be responsible for all losses incurred by the other party.

Criminal law. Crimes were classified into three groups: treason, felony (murder, breaking into someone else's home at night) and misdemeanor (fraud, forgery, etc.). There was another classification, which was of a procedural nature: crimes that were prosecuted under an indictment and considered in a jury trial.

Marriage and family law. It was heavily influenced by canon law. For example, bigamy, which was a felony, was prohibited. The family was patriarchal. A married woman did not have the right to appear in court and independently conclude an agreement. Anglo-Saxon customary law recognized divorce, but canon law did not allow it. In exceptional cases, divorce was allowed by the Pope and the English Parliament.

inheritance law. During this period, England did not know a single system of inheritance. The testamentary disposition was introduced along with the institution of trust. From 1540, bequests of real estate were allowed for the first time. The right to the initial claim to movable property of a person who did not leave a testamentary disposition belonged to the spouse.

1. Anglo-Saxon early feudal monarchy (IX-XI centuries)
2. Senior monarchy (XI-XII centuries)
3. Estate-representative monarchy (XIII-XV centuries)
4. Absolute monarchy (late 15th-mid 16th century)
5. Feudal law of England.

1. Anglo-Saxon early feudal monarchy.

After leaving in the 5th century. Romans in the British Isles begin invasion from the continent of the Germanic tribes of the Angles, Saxons and Jutes. The Celts were driven back to Scotland and Wales. B VII c. the Anglo-Saxons formed 7 early feudal kingdoms. At the beginning of the ninth century the kingdom of Wessex subjugated all the others, and a single state of England is formed. Unification factors: suppression of the resistance of the conquered peoples, the adoption of Christianity (VII century) and the struggle against the invasion of the Scandinavian tribes (IX-XI centuries)

Social system.
The development of the social system took place in the same way as that of the Franks, but more slowly. In the 7th century tribal nobility stands out ( earls), opposing communal peasants ( carlam), as well as semi-free years and domestic servants-slaves. In the Anglo-Saxon "truths" of the 7th-8th centuries. recorded practice of individual patronage ( glafordata). In the IX-X centuries. feudalization processes are intensifying. This was facilitated by the immunity grants of the king in favor of the clan nobility. Compulsory commendation is carried out in the legislative order: each person had to have a glaford (lord), whose power extended both to the person and to property. Unauthorized departure from his master was forbidden. Along with the tribal nobility, there was a serving nobility from the royal warriors ( tenov), who received land plots for their service. The dependent peasantry was formed from the impoverished kerls. From the conquered population - slaves.

By the 11th century the formalization of the system of feudal relations was still in its infancy. The king was the supreme owner of all land and could limit immunities and confiscate land grants. There was a significant stratum of free peasantry (especially in the northeast).

Political system.
With the conquest of Britain, tribal bodies turn into state ones. In the VII-VIII centuries. there is an exaltation of royal power over the tribal nobility. The king at that time was primarily a military leader, but also an elected one. The king had the right of the highest court. B IX-X centuries. there is a strengthening of royal power: the king acquires the monopoly right to mint coins, impose duties, collect supplies in kind from the entire population. The king intervenes in intra-communal relations, and even in disputes between feudal lords. At the same time, there is a concentration of political power in the hands of individual feudal lords on a limited scale and under the control of royal power.

The royal court was the center of government of the country, and the combatants were officials of the state. A special role was played by the royal treasurer and the chaplains in charge of the office.

Instead of a national assembly, a "council of the wise" appears ( uitanagemot) from the nobility, the king and queen, bishops, large feudal lords, and from the 9th century. it also includes royal thegns at the personal invitation of the king. The competence of the witanagemot was quite broad: issues of war and peace, appointments, approval of taxes, discussion of laws, consideration of court cases. The royal power gradually removed the council of the nobility from solving the most important issues.

In 1066, the Normans, led by William, conquered England, which contributed to the development of the feudal state, which, unlike the rest of Europe, experienced early centralization and increased royal power.

Social system.
The Norman conquest contributed to further feudalization. The confiscated lands were partly transferred to the royal domain, partly were distributed to the Norman feudal lords. However, the Normans kept the land to those who agreed to serve William the Conqueror. In 1085, William the Conqueror declared himself the supreme owner of all land and demanded an oath of allegiance from all landowners. All of them became vassals of the king with the duty of military service and other duties. The principle "the vassal of my vassal is not my vassal" was not established in England.

The basis of the feudal economy in England was the manor - the totality of land holdings of the feudal lord (as a rule, they were located in strips). The feudal lords did not acquire immunities. They were divided into 2 categories: direct vassals of the king (large landowners - counts, barons) and vassals of the king of the second stage (subvassals - medium and small landowners). The clergy performed vassal duties on the same terms as secular feudal lords (military service and taxes).

By the end of the XI century. most of the peasants were enslaved. The most common were villans, who were in land dependence, carried out services and duties. In the future, their status was reduced to the position of personally not free. One third of the population were landless and landless bordarii and kottarii. A small part of the population was made up of free peasants - sokmen (they approached petty feudal lords and allodists). The free peasants were allies of the royal power in the fight against the big feudal lords. Formally, in England there was the same "common law" protection for any free holding ( freehold), which is already at the end of the XII century. contributed to smoothing legal differences between the top of the free peasantry and petty chivalry.

The development of trade contributed to the growth of cities. Most of them were in the royal domain and controlled by the royal administration. In the context of the strengthening of royal power, the cities bought royal charters, which stipulated trade privileges.

Political system.
In the development of the state, the main trend was centralization. In the XI-XII centuries. centralization rested on the seigneurial rights of the English kings, who were the connecting center of the entire feudal-hierarchical system. The English state is a special form of senior monarchy, which was characterized by relative centralization and in which the king was the overlord of all the feudal lords and the largest landowner of the country. The judicial and fiscal rights of the crown are at the same time the rights of the highest liege in relation to the vassals. These rights were regulated by feudal custom. From the second half of the XII century. the nationwide beginnings in administration are strengthened in connection with the reforms of Henry II (1154-1189).

The judicial reform limited the rights of the feudal lords in the field of court and administrative administration and introduced new forms of judicial procedure. Other reforms were aimed at creating a mercenary army independent of the feudal magnates and establishing new types of financial taxation. The military reform assumed the replacement of personal military service by the payment of "shield money", which made it possible to maintain a hired knightly militia. Military service was introduced for the entire free population of the country. A nationwide tax on movable property was also introduced, which went to the upkeep of the troops.

The central governing body was the royal curia, which combined the functions of the highest executive, judicial and financial bodies. It consisted of: the marshal - the head of the army, the camerlein, who was in charge of the royal property, the chancellor - the personal secretary of the king, and also, at the invitation of the king, the highest secular and spiritual feudal lords.

Separate departments gradually emerged from the curia: the Chamber of the Chessboard (finance), the department of the chancellor, as well as a number of judicial bodies (the Supreme Court of the King, headed by a justiciar, within which there was a Court of General Litigation).

Local government.
The division into counties, hundreds and communities has been preserved. The sheriffs became the head of the local royal administration in the counties (they owned the highest judicial, military, financial and police power). Sheriffs interacted with hundreds and county assemblies. Gradually, the meetings lost their independent significance. Henry II removed most civil suits from their competence, but increased their role in the appointment of persons to investigate criminal cases (accusatory juries).

Court.
The limits of royal jurisdiction expanded at the expense of seigneurial. Almost all criminal and most civil cases related to land were within the competence of the royal courts. A system of traveling courts was practiced - visiting sessions of royal judges, who made rounds of the counties once every 7 years. For investigations, there were 12 jurors of knights or other full citizens who swore in as witnesses or accusers (this ensured greater objectivity). The traveling courts also served as a means of control over local government.

The competence of the courts of large feudal lords was limited due to the intervention of royal power. But the court of the feudal lord considered Villanian claims of all kinds, since the serfs did not have the right to apply to the royal court.

3. Estate-representative monarchy.

Social system.
B XIII century. there is a development of commodity-money relations, which contributes to the weakening of large-scale feudal landownership based on subsistence farming. The feudal lords are fighting with the king for land, income and political power. In the households of medium and small feudal lords - chivalry - there is an undermining of serfdom and the corvée system, the replacement of natural duties with monetary ones, and the partial use of hired labor begins. The stratification of the peasantry and the numbers of the free peasant elite are increasing.

Villans were disenfranchised, the landowner was considered the owner of their property. But legal theory and legislation recognized the right of the Villans to bring a criminal action in the royal court even against their lord. From the end of the XIV century. villanism gradually ceases to exist: villans redeem their freedom, corvee disappears, rent becomes monetary.

In cities, there is a differentiation of the population and the consolidation of corporate groups.

In the XII-XIII centuries. socio-economic factors contributed to the centralization of the state. In England, this process was accelerated by the growth of the stratum of the free peasantry, the economic and legal convergence of the chivalry, the townspeople and the prosperous peasantry, and the strengthening of the differences between the top of the feudal lords and their other strata. The common economic and political interests of the chivalry and the entire freehold elite became the basis for a political alliance.

Sources of law.
In the period of early feudalism, custom was the main source of law. Over time, collections appear collections - Pravda (Ine, Alfred, etc.). After the Norman conquest, a policy was proclaimed to observe the "good old Anglo-Saxon customs", which contributed to their consolidation within the framework of a single legal system common to the whole country. Traveling royal courts carried out the generalization of local customs, the development of common norms and principles. In their activities, the royal courts were also guided by previous decisions of judges. So there was a "common law" (Common Law), which was unwritten and uniform for all of England. Formally, it did not know the legal differences for the free part of the English population.

English feudal law was not influenced by canon law and Roman law. Established in the XII-XIII centuries. the norms of "common law" regulated the procedural law, the law of obligations, the jurisdiction of courts, etc. The norms were fixed by recording reports on individual court decisions in the so-called Scrolls of Litigation. From the end of the XIII century. Yearbooks appear, and in the 16th century. - court reports of private drafters. With the publication of Yearbooks, it is customary to cite similar court decisions to reinforce the positions of the parties with the authority of jurisprudence, but judges were not yet bound by it to a mandatory degree.

In the activities of the royal courts, royal prescriptions, which were issued to the plaintiff for a fee, were of great importance. They influenced the development of common law. The duty of the courts to hear cases within the strict limits of the writ contributed to the development of formalism in the common law. By the 15th century it ceased to correspond to the new conditions.

From the 14th century appears "justice". The mechanism of its appearance was as follows. The plaintiffs, who did not find protection for their rights in the common law courts, turned to the king for "mercy and justice". The king soon ceased to consider these appeals himself and handed them over to the Lord Chancellor, who was considered "the conductor of the royal conscience" (the first order on behalf of the Chancellor appeared in 1474). The chancellor turned to natural and partly to Roman law to resolve legal issues. Although the reception of Roman law touched England, it had no practical significance.

In the XV century. disagreements between the common law and the law of equity became apparent, which led to a weakening of the formalism of the common law. At the beginning of the XVI century. the chancellor acquired the right to interfere in the activities of the courts of common law. The conflict was resolved in favor of the Chancellor's Court, which ensured the priority of the rules of equity over common law.

Another source of law was legislation: royal charters, ordinances, etc. With the advent of parliament, statutes became a source of law - parliamentary acts approved by the king. The treatises of English lawyers also played the role of sources.

Property rights.
The land was of paramount importance. Its acquisition was carried out by contract, inheritance, award, limitation of ownership. The king was considered the supreme owner, from him the lords acted as "head holders", who transferred the land to the holding of vassals, etc. According to the nature of the duties, all land was divided into free and dependent land holdings. There were three main types of free holdings, which differed in legal regime:

1. Granted lands (passed to heirs); from 1290 free alienation was permitted by law.
2. Protected lands (holders could not alienate to the detriment of heirs).
3. Conditional life holding, which passed not to the heirs, but to the seigneur.

From the 14th century in the "right of justice" the institution of trust property appeared: the owner of a thing, under certain conditions, transferred it to the possession and management of another person, and the latter, by virtue of the obligation assumed, had to conscientiously manage this property in the interests of another person. If the obligations were not fulfilled, the owner was granted the right of judicial protection in the chancellor's court.

From the 13th century lease of land by free landowners. The right provided certain means of protection to the tenant, and the owner could not drive the tenant off the land before the expiration of the contract.

Pledge of land arises from a loan agreement with the possibility of returning the debtor in case of payment of the debt. A delay in payment under common law could cause a permanent loss of ownership of the land. In the XVI century. in the law of justice, a norm arises: the pledgor, in the event of subsequent payment of the debt, could claim the return of the land.

Law of Obligations
There were obligations from contracts and from causing harm. Contracts were divided into: formal (according to the established procedure) - enjoyed the protection of common law and informal (simple) enjoyed the protection of equity. The chancellor's court used the principle of performance of the contract in kind, which presupposed the actual performance of obligations.

Obligations from offenses arose in the event of violent actions on the part of a partner and violation of the order established by the king. Gradually from the end of the XIII century. the interests of the persons who suffered damage received protection in the event of unlawful acts or omissions of another person and in case of non-performance or improper performance of the contract.

The contract of employment worked in a peculiar way. Due to the plague of 1348-1349. there was a decrease in the number of workers, which led to the emergence of statutes that obliged to hire for a fee as before the epidemic to any employer; refusal was followed by prosecution.

Family law.
governed by canon law. The property relations of the spouses were regulated by common law: the wife could not independently conclude contracts, dispose of property, accept gifts without the consent of her husband. Treason was considered a crime, for which "excommunication from the table and bed" was supposed. Illegitimate children were not recognized by common law.

Criminal law.
During the rise of feudalism, crime was seen as a breach of allegiance to the king, regardless of who was harmed. Punishments: talion, outlawing, monetary fines in favor of the king or the victim.

From the 12th century There are two types of crimes - against the king and against private individuals. The first included serious crimes, including those against the church, as well as some crimes against the person and property. There was a distinction between intentional and reckless crime. At the end of the XII century. the concept of "felony" is introduced at first to denote treason to the lord, followed by the loss of fief, then this concept extends to a number of serious crimes (murder, arson, rape, robbery, theft) with the death penalty with confiscation of property.

In the XIV century. The classification of crimes is divided into three categories: treason- the most serious state crime (rebellion, murder of members of the royal family and senior officials, counterfeiting); felony- serious criminal offense; misdemeanor (misdeaminor)- petty crime. Later, the concept of "small treason" appeared: the murder of a master by a servant, a wife - a husband, a clergyman - a superior prelate, etc.

A distinctive feature of the criminal law of medieval England was the tendency to tighten criminal repression. For any treason and most felonies, the death penalty was due, including the qualified one: burning, quartering, wheeling, etc. Often the punishments were accompanied by confiscation of property.

From the end of the XV century. in criminal law, the so-called "bloody legislation" appears, directed against vagabonds, beggars, and begging. For repeated exposure to begging, the death penalty or severe corporal punishment was due.

Process
Initially, the process was adversarial. It was held in public, with equal rights of the parties and was oral. The main types of evidence were confession, oath, witnesses, ordeals. The bulk of the common law was considered in the local and feudal courts.

The institute of swearing was developing. Initially, jurors acted as witnesses to the fact during civil and criminal investigations. Under oath, they had to tell the traveling judges everything about the criminals and crimes in the area. At the end of the XIII - beginning of the XIV century. grand and petit juries appear. The first was engaged in the approval of the indictment, and the second participated in the consideration of the case on the merits and issued a guilty verdict.

With the coming to power of the Tudor dynasty, investigative principles are developing in the process. The prosecution of the accused is carried out in the order of summary proceedings (a form of process provided for by common law and intended for consideration of minor cases by magistrates, sheriffs, etc.) and by indictment (4 stages were provided: arrest, trial, trial, sentence). Until the trial, the accused was kept in custody, without serving an indictment. Interrogations were conducted under torture, although common law did not formally recognize torture.

Judicial decisions were not allowed to be appealed. Only a claim for error was possible if inaccuracies were found in the preparation of the protocol.

additional literature

It is often said that the English law of the Middle Ages in many respects expresses the spirit of the English people, and of this there is no doubt. The desire to create a consistent and harmonious legal system played an important role in the development of English law. The English legal system has one feature dating back to the period of feudalism that distinguishes it from almost all the legal systems of the countries of the world: a significant part of legal acts was not approved by any parliament.

Magna Carta was adopted as a result of the performance of the barons with the participation of chivalry and townspeople against King John the Landless. Officially in England, this document is considered the first constitutional act.

Most of the articles of the Charter deal with the vassal-fief relations of the king and the barons and seek to limit the king's arbitrariness in the use of his seigneurial rights related to land holdings. These articles regulate the procedure for guardianship, obtaining relief, etc. (v.2-11, etc.).

At the same time, among the purely "baronial articles of the Charter, those that were of a general political nature stand out. The most openly political claims of the barony are expressed in Article 61 - the desire to create a baronial oligarchy by establishing a committee of 25 barons with control functions in relation to the king"

Articles 12 and 14 provided for the creation of a council of the kingdom, limiting the power of the king to collect "shield money".

Articles 21 and 34 were intended to weaken the crown's judicial prerogatives. Article 21 provided for the jurisdiction of earls and barons to a court of "equals, removing them from the action of royal courts with a jury",

The interests of chivalry in the most general form are expressed in Art. 16 and 60, which speaks of carrying out only the prescribed service for a knightly fief, and that the provisions of the Charter regarding the relationship of the king with his vassals apply to the relationship of barons with their vassals.

The Charter speaks very sparingly of the rights of citizens and merchants. Article 13 confirms ancient liberties and customs outside the cities, v. 41 permits all merchants free and safe movement and trade without the imposition of unlawful duties on them. Finally, Art. 35 establishes the unity of weights and measures, which is important for the development of trade.

Of great importance was a large group of articles aimed at streamlining the activities of the royal judicial and administrative apparatus. This group of articles (Articles 18-20, 38, 39, 40, 45, etc.) confirms and consolidates the traditions that have developed since the 12th century. judicial-administrative and legal institutions, limits the arbitrariness of royal officials in the center and in the field.

Many rules of English law are contained not in Acts of Parliament, but in judicial reports in cases decided by judges of the High Court, the Court of Appeal and the House of Lords.

The practice of taking minutes of the decisions of royal judges is of ancient origin and dates back to the time of Edward I.

It was recognized that the decision rendered in any case creates binding precedent. This meant that the judge, when resolving any issue, was obliged to apply the rule of law that another judge had formed in the decision on the previous case.

English medieval law is a combination of case law and statute law.

The Magna Carta played an important role in the formation of the legal system of England. This charter is considered the first Constitutional Act in England.

In the early feudal states, custom was the main source of law.

Source of English feudal law were statutes legal acts of the central government. Initially, they included acts of royal power, which had a different name - statuses, assizes, ordinances, charters. With the formalization of the legislative powers of parliament, statutes began to be understood as legal acts adopted by the king and parliament. Acts passed by parliament and approved by the king were considered the highest law of the country, capable of accepting and supplementing the Common Law. The totality of legislative acts of the king and acts adopted by the king and parliament is called statutory law.

Starting from the fourteenth century, the so-called " equity ". In those cases when a particular person did not find protection for his violated rights in the courts of "common law", he turned to the king for "mercy" to resolve the case according to "conscience." The "right of justice" was more flexible, more mobile and devoid of formalism.

"common law "recognized a strictly defined circle of obligations arising from contracts. Contracts were characterized by strict formality, were concluded in a certain form and were subject to registration in court by entering them into litigation rolls.

In the twelfth and thirteenth centuries, the institution of "trust property" arose in English law. trust.

The emergence of this institution is associated with restrictions on the disposal of land, established by the "common law". Traveling knights who went on campaigns resorted to such a means, and they passed it on.

The questions settled by the civil law of England were not much different from those in France.

The "common law" settled questions related only to the free holding of land. There were "head" land holders (barons, lords) and "knightly" holdings. All of them were considered vassals of the king. The struggle for the right to free disposal of land was reflected in a number of legislative acts of the 13th century.

"Dead Hand Status"(1279) forbade the owners of fiefs without the consent of their lords to alienate the land of the church and clergy.

The Third Statute of Westminster allowed every free man to dispose of his land as he pleased.

1. Free simple hold - free simple hold.

2. Conditional land holdings. The return of the land to the donor, if the person to whom the land was donated had no offspring. "Reserved" holdings - only by inheritance; usually to the eldest son (majorata).

Law of Obligations. The main sources of obligations were contracts and offenses (torts). "Common law" recognized only a strictly limited range of obligations arising from contracts. These contracts were characterized by strict formality: they were concluded in a certain form and were subject to registration in court by entering them into the scrolls of litigation. In the event of non-performance of the contract, a complex and lengthy procedure for recovering the damage caused was envisaged.

Under the "common law" it was possible to recover only the damage caused, but it was impossible to force the real performance of the obligation, then the "right of justice" could come to the rescue.

Family and marriage and inheritance law. Issues related to the conclusion of marriage and its dissolution, with the personal relations of the spouses, were within the competence of canon law. The property relations of the spouses were regulated by "common law". The dowry brought by the wife passed to the disposal of the husband, who was entitled to freely dispose of movable property and possession and use of immovable property. The husband could own and use immovable property and use the property of the deceased wife if they had children.

The legal personality of the wife was dissolved in the personality of the husband. In the field of inheritance law, the main type of inheritance was inheritance by law. Initially, land holdings were subject to return after the death of the vassal to the seigneur; from the 12th century, the obligation was established to pay the heir to the state duty-relief.

Lack of the right to transfer an inheritance by will could be bypassed during his lifetime by conditional donation, or transfer to trust.

The development of criminal law in England took place under the influence of statutes and judicial practice of the royal courts. For example, the Northampton Assize contains a list of the most serious crimes: secret murder, robbery, robbery, harboring, etc.

In the 13th century, all crimes were divided into 3 groups:

1) crimes concerning the king;

2) crimes concerning private persons;

3) crimes of persons concerning the king and private persons. However, this classification was not kept in English law, but a three-term system was formed: (trizes - treason, felony - a serious criminal offense, misdemeanors - misdemeanors).

The statute of 1352 singled out 2 types of treason: "higher treason", "small treason".

Treason included:

1) plotting to kill or kill the king, queen, their eldest son and heir;

2) rape of the queen, the eldest unmarried daughter of the king or wife and other acts.

They concerned the interests of private individuals only. Punishment in English feudal law was characterized by extreme cruelty.

The English feudal legal system was characterized by unity, since England never knew feudal fragmentation, but was a centralized state with a strong central authority.

CONCLUSION

The main features of feudal law were the norms regulating land relations, the law fixed the inequality of various classes.

In feudal law, there was no division into branches of law that we are accustomed to; the role of ecclesiastical law was great.

In Western Europe, the "second life" of Roman law began.

Sources of law. In the early feudal states that arose on the territory of Britain, custom was the main source of law. In some, collections of customs were published with the inclusion of norms legally approved by the state authorities. This is - Ethelbert's Truth, Ine's Truth, Knut's Laws.

After the Norman conquest, the old Anglo-Saxon customs, which were of a local, territorial nature, continued to operate. But in the future, the development of the English legal system took the path of overcoming particularism and creating a common law for the whole country. Played a special role in this process traveling royal judges. When considering local cases, traveling royal judges were guided not only by the legislative acts of the kings, but also by local customs and the practice of local courts. Returning to their residence, in the process of generalizing judicial practice, they developed general rules of law. So gradually, from the practice of royal courts, uniform rules of law developed, the so-called "common law".

Starting from the XIII century. in the royal courts they began to draw up minutes of court sessions, "rolls of litigation", which were later replaced by collections of court reports. It was at this time that the basic principle of "common law" was born: the decision of a higher court, recorded in "litigation scrolls" is mandatory when considering a similar case by the same or a lower court. This principle became known as judicial precedent.

From the 15th century in England formed the so-called "equity". In the event that someone did not find protection for their violated rights in the courts of "common law", he turned to the king for "mercy" to resolve his case "according to conscience." With the increase in such cases, a chancellor's court ("court of justice"). Litigation was carried out by the Chancellor alone and in writing. Formally, the chancellor was not guided by any rules of law, but only by inner conviction, at the same time, when making decisions, he used the principles of canon and Roman law. "The right of justice" supplemented common law, filled in its gaps. "The right of justice" was also based on the principle of precedent.

The source of English feudal law was also statutes, legislative acts of the central government. The totality of the final acts of the king and the acts adopted jointly by the king and parliament is called statutory law.

The "common law", which regulated issues related to feudal freeholding, singled out two types of freeholders: 1) directly from the king - baronies, which were granted to "head holders", and 2) free knightly holdings from "head holders". Both were equally vassals of the king.

From the point of view of the powers of the owner, the "common law" distinguished three categories of holders:

1. Holding "free-simple" - you can own and dispose of, and only in the absence of heirs, it was returned to the seigneur as escheated property.

2. Conditional land holdings.

3. Reserve holdings - holdings that could not be disposed of and which were inherited only by a descendant relative, usually the eldest son (primacy principle).

In the XII-XIII centuries. there is an institution of trust property (trust), according to which one person transfers property to another so that the recipient, having become formally its owner, manages the property and uses it in the interests of the former owner or at his direction.

The legal status of the peasant allotment. Personally dependent (serfs) peasants received the name villans. Willan could not have any property that did not belong to the master. For the right to use the allotment, villans had to bear various duties. There were full villans, whose duties were not defined and were established arbitrarily by the feudal lord, and "incomplete villans", whose duties were precisely fixed. The feudal lord could not raise them or drive them off the ground. They had the right to sue their master in the royal courts.

Over time, a new form of peasant land ownership arises - copyhold. Kopigold - is peasant land ownership based on custom feudal estate (manor), provided to the peasant (copyholder) by issuing him an extract from the protocol of the manorial court, confirming his right to own the plot. By its nature, copyhold was in the nature of a hereditary lease.

There were peasant lands in England, free from duties in favor of the feudal lords, - freeholds.

Family law. Marriage and relations between spouses were regulated by canon law.

Property relations were regulated by "common law". The dowry brought by the wife was placed at the disposal of the husband. He could own and use his wife's real estate even after his wife's death, if they had children in common. In the case of childlessness, the property of the wife after her death was returned to her father or his heirs. The wife did not have the right to conclude contracts, make transactions, appear in court without the consent of her husband.

The succession of feudal holders took place on the basis of primacy. The rest of the property was divided into three parts: 1/3 went to the wife, 1/3 to the children and 1/3 to the church.

Criminal law and process. From the 13th century in England, the division into three groups of crimes was fixed: feast (treason), felony (serious criminal offense) and misdemeanors (misdemeanors).

First of all, the concept of "felony" was developed - murder, arson, rape, robbery. The main punishment for a felony was the death penalty.

In the XIV century. trizn began to be divided into "great treason" - the attempt or murder of the king or members of his family, the rape of the queen, the daughter of the king, the wife of the son of the king, the uprising against the king, the forgery of the royal seal, coins, the importation of counterfeit money into the country, the murder of the chancellor, treasurer, royal judge - and "small treason", which was considered the murder of a servant of the master, the husband's wife, a layman or a cleric of the prelate.

Treason was punishable by death with confiscation of property.

All other crimes were classified as misdemeanors, the punishment for them was not accompanied by the death penalty.

In the XIII-XIV centuries. in England, the jury is being strengthened, both in criminal and civil cases.

The development of the feudal state in England differed from the "classical" path traveled by France. His backstory is rooted in the distant past. The most important milestones can be considered the invasion of the Celtic tribes, which began in the III century. BC e.; Roman rule in (I - V centuries AD); conquest in the 5th century. Celts by Germanic Anglo-Saxon tribes. Foreign conquests contributed to the intensification of the processes of decomposition of primitive communal relations among the Celts and Anglo-Saxons, who in the 10th century. united into one state, similar to the state of the Franks described above.

The Anglo-Saxon state did not last long. Already in the middle of the XI century. Britain was under a new invasion - from Normandy, a peninsula on the northwest coast of France. In 1066 the Duke of Normandy William the Conqueror landed with his army in Britain, utterly defeated the Anglo-Saxons and was proclaimed King of England.

After the Norman Conquest, all the highest government positions were replaced by the Normans. William the Conqueror declared that the sovereign title to all land in England belonged to the king. All other landowners were declared holders of land holdings and began to be regarded as direct vassals of the king. These events naturally strengthened the position of royal power.

The Norman Conquest contributed to the formation of feudal land ownership. It also consolidated the formation of the main classes of English society. 20 years after the conquest, in 1086, a census of the English population was taken to determine tax revenues. The results of the correspondence were collected in a book called the Doomsday Book.

The materials of this book give an idea of ​​the class structure of the already established feudal society in England. Here, however, all groups of feudal lords were considered vassals of the king. There were softened forms of feudal dependence of the peasants.

The state system of England after the Norman Conquest was distinguished by an essential feature. If in France the victory of feudal relations led to the fact that in the first centuries of the existence of feudalism France was characterized by fragmentation, weakness of the central royal power, then in England immediately after the Norman Conquest a centralized state was formed.

The English feudal state did not know the period of feudal fragmentation. This was its first feature, explained in many respects by the economic strength of royal power. William the Conqueror, during the conquest of England, seized approximately 1/7 of all arable land and 1/3 of all forests in England; he had about 1500 estates. The royal domain was the largest land holding in England, which determined the strength of royal power. In addition, strong royal power was explained by the need to maintain dominance over the subjugated Anglo-Saxon population.

The king was at the head of the state. As a rule, the English king made all the most important decisions jointly with the royal curia. The competence of this body was not clearly defined. As a rule, the royal curia acted in three forms. Firstly, as a congress of feudal lords (great royal curia), convened to resolve the most important political issues. Secondly, as the highest judicial body in England, resolving disputes between the immediate vassals of the king and considering appeals against decisions of lower courts. From the royal curia, as a judicial body, a financial body stood out - the "chamber" During the census, it was required to speak only the truth.

The royal curia acted as a governing body - the small curia of the king, which was a permanent body consisting of royal advisers. Among them, the most important was the justiciar - the head of administration and finance. In addition to the justiciar (then the chancellor), the small royal curia included the treasurer, constable (head of the royal cavalry), marshal (head of the militia), etc.

Sheriffs were the representatives of the central authorities in the localities. Their functions were varied: they were in charge of collecting taxes and requisitions in favor of the crown, supervised the protection of public order, prepared cases for trial, executed the sentences of the courts, and themselves dealt with petty court cases.

The strong royal power that developed in England after the Norman Conquest was further strengthened after the reforms carried out in the 12th century. King Henry P.

Reforms of Henry II. During the reign of this king, three reforms were carried out - judicial, military and administrative. In the field of judiciary, a great innovation was the introduction of traveling judges (at first two, then dozens of judges within six districts) and the introduction of a special procedure for investigating land claims and related offenses (Great Assize 1166, Northampton Assize 1176).

The military reform contributed to the replacement of traditional personal military service with the payment of "shield" money, the introduction of a general tax on movable property (Assis on weapons in 1181).

Administrative changes have affected several areas. As part of the royal curia (departments), the Chamber of the Chessboard (financial management), the office of the chancellor, the office of the High Court, headed by the justiciar (an expert in customary, Roman and church law), were separated, the Court of General Litigation was separated from the Court of King's Bench.

The next direction of change was the approval of the sheriffs by the heads of the royal administration in the counties, endowing them with the highest judicial, military, as well as financial and police powers in the county (the Clarendon Assize of 1166).

The attempts of this despotic and energetic ruler to subjugate the clergy and church courts, as well as to appropriate the right to replace the highest church positions (the Clarendon Constitutions of 1664) turned out to be unsuccessful.

The emergence of common law and jury trials. Judicial cases were traditionally considered locally, and not in the center and not in the destinies. Collective responsibility coexisted with personal responsibility (at first there was collective responsibility, then personal collective responsibility: 10 people were called, who, in case of collective guilt, were given all responsibility).

In addition to ordeals (trials), the accused could be cleared of suspicion with the help of an oath, however, in combination with the oaths of others, usually in the amount of 12 from among relatives or immediate neighbors, who certified the sincerity of the testimony of the accused. In fact, in this case, they certified that the accused had a certain reputation. However, the oaths of different people had different meanings, and here the social status of the witness came into play. The testimony of one servant of the master was equal to the strength of the testimony of six commoners (kaerls). Cleansing by an oath was not always accepted, and then they resorted to the help of God's judgment (ordeals). Judicial trials with divine intervention were used if 12 witnesses were not gathered ready to take an oath, or a relapse (repetition) of a criminal act was examined, or the accused was not a free person.

An important peculiarity in the procedure and rite of the "judgment of God" among the Anglo-Saxons was at first the participation of Christian priests in preparing for it. During this period, the sinful began to be identified with the criminal, and already in the process of taking an oath before the court to confirm the veracity of their testimony, the accuser and the accused laid their hands on the Gospel, swore by the name of God or a saint. The judgment of God took place in the following order, which is reported in the Laws of Æthelstan (927-937).

“If someone has undertaken to undergo an ordeal, then let him go three nights before to the priest who is to consecrate (him), and let him eat bread and water, and salt and herbs before he starts the ordeal, and must be present at masses on each of these three days, and on the day when he is to go to the ordeal, let him distribute alms and take communion, and then, before going to the ordeal, swear that he, according to Truth, is not guilty of what he is accused of . And if this is an ordeal with cold water, then let him sink a cubit and a half (tied) with a rope, if (but) this is an ordeal with (hot) iron, then three nights must pass before they open the hand ”(Laws of Æthelstan, 23, 23.1).

The test with water had a sign of innocence, the acceptance of the body of the test subject by water, and in the test with iron, the speed of healing of a wound from a burn.

The most significant updates in legal proceedings and legal regulation fall on the reign of Henry II of Anjou (1154 - 1189) from the House of Plantagenet, who ruled for almost two and a half centuries. His reign included the legislative design of the jury (Great Assize of 1166), which, according to some assumptions, existed even before that. A procedural version of the ancient jury trial is considered to be a sworn survey of local residents during the preparation of the Land Registry under William the Conqueror. Later, the same rite was observed in disputes over land ownership between the vassals of the king.

Trial by jury in its early forms. In 1164, Henry II, the king of a state that stretched from north to south - from the borders with Scotland to the Pyrenees, issues the Clarendon constitutions (they are Clarendon assizes, that is, royal decrees adopted at a special assize meeting), according to which all the clergy who received fief from the king are obliged to continue to answer for it before the royal officials and judges. A new procedure for land holding disputes was introduced. Every free person could, for a fee, transfer a dispute from a local court (for example, a baron's court) to the royal court.

The Great (Clarendon) Assize of 1166 and then the Northampton Assize of 1176 established, on behalf of the king, the procedure for judicial investigation with the help of intermediaries from local residents who were obliged to testify under oath. Thus, the first prerequisites for a jury trial were created.

“First of all, King Henry, on the advice of all his barons, for the protection of peace and the preservation of a fair trial, decided that an investigation should be carried out in individual counties and in individual hundreds through 12 hundred people and through 4 full-fledged people of each village under an oath that they would tell the truth : is there any person in their hundred or in their village who, on the basis of fact or rumor, is accused of being a robber or robber, or one who is a harborer of robbers or secret murderers, or robbers after the sovereign king became king. And let the judges investigate this in their presence, and the sheriffs in theirs ”(Clarendon assize, 1).

If it turns out that a person accused on the basis of factual data or rumors, as well as the “swearing instructions” of invited people, is really a criminal, then he must be arrested, subjected to a test of water (ordeals). If at the same time it comes out clean, but at the same time is notorious, it is obliged, according to the requirement of the assize, to leave the borders of the kingdom and in the next 8 days must “cross the sea” and after that not return to England except by special favor of the king. As a result of the trial, such people should be “declared outside the law.”

To ensure such investigative activities under Henry II, who was engaged in military enterprises in his French possessions, traveling royal judges were appointed, who were part of the Court of King's Bench. This court dealt with crimes and punishments. Over time, two more judicial institutions of the kingdom were added to it - the Court of General Litigation, which dealt with civil litigations not related to the interests and rights of the crown, and the Court of the Treasury, which handled tax and inheritance cases with the participation of the crown as one of the parties. It was the efforts of these judicial institutions that created new opportunities for the formation of a unified judicial system in the country and fixing common sources of law. The last two institutions arose during the reign of Edward I at the end of the 13th century.

In 1194, the post of rural coroner appears to investigate mysterious deaths in the community. The office was elective, but the nomination of the coroner received approval on behalf of the king. The post of coroner lasted until 1888. In 1252, the position of judges for minor offenses was established, who received part of the judicial authority from the sheriffs - the position of justices of the peace (lit., defender of the world, lat. - defensor pads). It lasted until the second half of the 20th century. In 1215, after Pope Innocent III prohibited the participation of priests in holding ordeals, this type of trial was abolished in England. In the same year, the rebellious barons forced the king to sign the Magna Carta, which secured their privilege to be sued only by a court of equal judges.

In the XIV century. The indictment jury of judges was established, which began to be gradually supplemented by the jury of the verdict (sentence by a small jury). The jury usually consisted of wealthy sections of the population - knights, landowners with a sufficient level of income and paying taxes. From the 16th century in the trial, a distinction was made between the functions of witnesses and jurors: the former, as expected, reported the facts known to them, and the latter decided the court verdict on the guilt or innocence of the accused in court. Since 1670, the rule that a juror in court could be punished for his verdict (a verdict is a fair testimony) has lost its force.

Common law. According to the generalization of Heinrich Bracton, an authoritative expert on the law of the mid-13th century. and the author of the treatise On the Laws and Customs of England (c. 1230), the peculiarity of this country is that only in it is it officially allowed to use custom and unwritten law.

A custom, according to one of Bracton's definitions, is that which is carried out as a law in those localities where the custom has been established as a result of long use and observance like a law, because "long-term use and custom have no less force than the law."

Sources of law in this period were formed on the basis of customary law and such judicial decisions that became binding on the court itself and lower courts (a kind of judicial customary law created by precedents, i.e., earlier judicial decisions). Thus, a common law for the whole country arose - Common law (common law, which in practice appears as a general law for the whole kingdom). This right arose due to the monopoly of the royal courts on the adoption of sample court decisions binding on lower courts and the use of legal customs.

Common law itself had many properties of legal custom: constancy, widespread application for a long time, as well as a certain flexibility in comparison with the practice of applying the text of certain laws.

Judicial institutions had several categories of judges. The most important were in charge of all affairs and were obliged to correct the mistakes made by other judges. Next came the judges of the Court of King's Bench, who took the oath. The next step in the hierarchy was occupied by visiting (traveling) judges who made decisions on civil cases or release from prisons. They did not take an oath and acted on the orders of the king. And the last category included judges specially appointed to any judicial assize (session).

The efforts of the royal judges found support among lawyers (barristers). In the beginning, common law rules were recorded in the form of descriptions of judgments, notes by legal professionals, or records of judgment reports for a certain period. From the end of the XIII century. the regular compilation of yearbooks of court reports begins, which later became the subject of citation in court proceedings and decisions. With the advent of book printing (at the end of the 15th century), this task was simplified, and records of court decisions (Litigation Scrolls) began to be published annually. A system of appeals to the highest courts allowed the best of competing decisions to be selected and included in the yearbook.

After 1340, the remaining gaps in customary and common law began to be corrected by the existing parallel system of "justice", based on the concept of good and justice and somewhat reminiscent of Roman praetor law and the requirements of Christian precepts. The court of justice was administered by the chancellors of the kingdom. The first in this position were persons of clergy (bishops), among whom we should mention T. More, the great English thinker of utopian orientation. Another no less famous chancellor and head of the court of justice was F. Bacon, a contemporary of Shakespeare and Elizabeth I, who, however, was in charge of judicial and administrative affairs not always successfully and with dignity.

Over time, in addition to customary common law and the law of fairness, statutory law began to acquire increasing importance - parliamentary laws (acts) that replaced royal constitutions and assizes (decrees). However, at first, the notion persisted that the common law could expand its sphere of influence by decisions by analogy, and also due to the fact that not all emerging problems can be solved by new laws, since there are always some norms “in the hearts of people” (according to St. Paul , the true law lives in the hearts of people). One of the first official interpretations of such a position on the question of the sources of law and the role of common law was the statute of 1285, which called on the judges themselves to seek new solutions.

According to the historian of law of the last century V. Nechaev, English law, like Roman law, has every reason to be called universal, and this was confirmed by the vast geography of the common law space - from London to Canberra and from Canberra to Washington and Ottawa. English historians themselves pay attention to the original features of common law. According to A. Jenks, English law is as original in the set of legal systems of the countries of the world as Roman law.