9 - The legal system

Summary

The English common law, which was served so assiduously by Thomas Kebell and his fellows, seemed both venerable and secure. Although its tradition dated only to the custom of the royal court of Angevin days, triumph over alternative laws had been complete. Even the law of the church, which had provided such resistance in the days of Henry II, now operated under the licence of the common law.^l In parliament, the judges and Serjeants took precedence over all commoners in the royal procession to the House of Lords, and sat in a tight group on and around the woolsack in the centre of the chamber. On circuit the majesty of the law was recognised by the ceremonious welcome, housing and entertainment of the justices, while at the opening of the assize the commissioners were met by the notables of the shire and were expected to provide a grave discourse suitable to the occasion.

Appearance and reality are, nevertheless, not the same, and the founding father of English legal history, F.W. Maitland, argued that behind this apparent security, the English common law was in a parlous position. Across the channel, Europe was experiencing one of its periodic resurgences of Roman law. Communities everywhere, and especially the princes, were turning under the pressures of new political and economic stresses to the chief legacy of the Roman empire, the lex civilis; in country after country, ‘the reception of Roman law’ was undermining and even sweeping away the ancient laws and customs of the continent.