PRESENT AT THE CREATION
Pollock and Maitland’s two volumes go back to the era before the Norman Conquest of 1066. But the volumes primarily deal with the legal revolution that occurred in the reign of Henry II (1154-89), William the Conqueror’s great-grandson, and the working out of the implications of this legal revolution down to 1272. This was the founding era of what has come to be called the common law, the judicial system that still prevails in England and Wales (but only partly in Scotland) and in the United States, the English-speaking provinces of Canada, and many other countries that were once part of the British Empire. No one knows for sure the origin of the term “common law.” Either it means royal law—law common to the whole of the English kingdom, as distinct from local customs—or the term stands for secular law as distinct from church law. Henry II got into a furious conflict with his archbishop of Canterbury, Thomas Becket, formerly the king’s friend and chief official, over the marginalization of ecclesiastical (termed canon) law in the interests of the great expansion of royal law, as well as over the property of the church. Even before Becket was removed in 1170 by assassination at the hands of four of the king’s overeager courtiers, the archbishop was losing the fight to restrain this advance of the common law over every aspect of English life except marriage, divorce, blasphemy, and adultery. How and why this legal revolution happened, making English law very different from Continental European law, is the main theme of Pollock and Maitland.
So it seems the battle between Church and State began early, and as usual, it was a battle of power, influence, and wealth which the Church began to lose. It is remarkable to see the modern parallels whereby the Conservative Christian Fundamentalists as always are looking back, even centuries as I've long suspected, to connive and finagle their power/wealth back. (me)
The Angevin government of Henry II, as described by Maitland, arrived at its momentous reforming judicial decisions in the 1160s for reasons of both expediency and profit. The expedient was a low-cost judicial system that at the same time enhanced royal power over landed society. The profit came mainly from the cost of obtaining a royal writ to start a civil suit (as it does today) and the seizures by the crown of a felon’s movable property. If the expansion of the jury system was an institutional innovation that was bound to be favored by the gentry who would staff the juries and find their participation in the process of the common law enhanced, thereby stiffening their loyalty to the crown, this was a happy side effect. Maitland stresses that we are witnessing not the preparation of a fully elaborated, predetermined structure but a great many functional contingencies and experiments at work. The judicial outcome could have been different if one or more components were variant or absent. The role of the crown was crucially important, but there were many other factors at work, including the need for landlords to settle property disputes and the desire of peasant villagers to control crime. Dozens of contingencies had to fall into place and interact for the common law to compose itself in the way it did.