Communities and Crime: Historical Underpinnings on the British Isles
The American judicial experience has been unique both in its process and its end product. And yet, even as we appreciate our nation's history, it is interesting and instructive to reflect on the earliest influences on our tradition of justice: those that existed on the British Isles around the time of the Norman Conquest in A.D. 1066. A snapshot of life and governance before and after the Norman Conquest presents different relationships between communities and crime. What can we learn, nearly a millennium later, from Saxon localism and Norman nationalism?
William the Conqueror is sometimes portrayed as a great civilizing influence – as the formidable figure of continental culture who boldly imposed order on the British Isles. And yet, in truth, he arrived on English soil in a.d. 1066 to discover a sophisticated and highly functional legal system already in place. Saxon England was prosperous and settled in the centuries preceding the Norman Conquest. Its population operated an agrarian system, engaged in some intervillage commerce, and participated locally in the administration of justice. This localism was a matter of both temperament and convenience (Keeton 1966). Regardless, for Saxon England, the result was the use of small, cohesive groups to decide and implement equitable remedies when conflict arose in communities.
While the Saxon model of governance and justice relied on local administration, it was neither random nor disorganized. Instead, there was an established infrastructure for making and enforcing laws, and that system was heavily oriented toward three specific local levels. There was no strict allocation of functions among these bodies; each was able to deal with administrative, fiscal, or judicial functions as needed.
The basic unit in Saxon England was the township. Consisting of about a dozen agrarian households, the township would work together to resolve interfamily conflicts and tackle projects on the farmland surrounding their homes. At their regular meetings, townships would gather all the households to discuss issues and decide remedies. A more regional approach to governance in Saxon England was through the Hundred. Made up of representatives from adjoining townships, the Hundred acted as both police force and court system. The main governing body of the late Saxon period was the Shire Moot. This administrative body was composed of respected leaders like the bishop and the alderman, as well as representatives of the Hundred. In its capacity as a judicial body, the Shire Moot made decisions by first declaring, and then applying, local custom.
Conflict resolution in the Saxon period is perhaps best exemplified by wergild, literally interpreted as “man price." In instances of wrongdoing, wergild was the sum of money paid to the injured person or his family by the wrongdoer or his family. The use of wergild was unique in that it legally required a peaceful solution to the conflict – that is, a family who accepted the money was required under law to renounce a blood feud. The amount of the wergild was determined by an elaborate formula that took into account the nature of the injury and the parties' status (Keeton 1966). Some modem scholars describe Saxon England as being “addicted" to compromise – from its simple complaint-and-reply procedures to its decision making by an impartial official to its use of remedies as dictated by local custom.
The Saxon kingship, which had existed for many years, enjoyed greater reverence and increased powers in the later Saxon period. The king was selected by the Witan, a national assembly, and could seek Witan counsel as he saw fit. Through writs, the king would state a preference for one custom over another. However, the ultimate decision among a choice of laws was left to the local government units.
Norman Legal Systems on the British Isles
Recognizing the virtues of Saxon law and eager to maintain an air of legitimacy, William the Conqueror maintained certain components of the Saxon jurisprudence. However, his coming also brought some feudal customs from the European continent, as dictated by the need for security and loyalty to the king. In England, Norman rule incorporated the blood feud tradition under which land disputes were resolved with trial by battle. While the wergild system of the Saxons survived the Conquest, the criminal law administered in the king's courts after 1066 was mostly inspired by these more primitive Norman customs (Keeton 1966).
The manorial system of post-Conquest England led to isolation of law. Each lord had a court to process agricultural disagreements, petty crime, and more serious crimes. The king would interfere only if there was a significant or salacious dispute between lord and serf.
The king's courts and the manorial courts both struggled to assert jurisdiction over freehold tenants who lived outside the boundaries of manors. By the end of the Middle Ages, freehold litigation was monopolized by the king's court, representing a significant step toward nationalization of the justice system (Fifoot 1993). The usual court for freehold tenants since Saxon times had been the county court, which was maintained after the Norman invasion as a balance to the rising manorial power. In fact, the county court was the center of local justice until around A.D. 1300, when a new law confined jurisdiction of the county court to low-level cases. The ensuing decay of the county court led to the rise of the modem, nationalized English justice system, which provided the framework for the early American court system.