CML 4114 JD Comparative Legal Systems lecture 02

CML 4114 JD Comparative Legal Systems lecture 02 – languages of the common law Lehrstuhl für Common Law und Vergleichende Rechtstheorie Prof. Dr. Thomas Lundmark

Prehistoric Britain • prehistoric inhabitants called Celts on the basis of their language • fusion of Mediterranean, Alpine, and Nordic strains that included a dark Iberian and a light-haired stock • contacts with the Iberian Peninsula (2500 BC) and Egypt (1300 BC) FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Celtic Britain before AD 43 FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Celtic (legal? ) words • whisky • hubbub (Tumult) • tory, originally meaning robber (Räuber) FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Roman Britain • 43 BC Roman invasion • 122 – 126 AD construction of Hadrian’s Wall • 407 AD occupation ends FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Roman Emperor Hadrian born 76 AD in Hispania, now Spain, died 138 AD FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

some English legal words from Latin (but not from the occupation) • • • notary citation exception suborn perjury habeas corpus • • mandamus quo warranto supersedeas verdict (Latin via French) • testify • testimony FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Germanic immigration FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

700 AD first manuscripts in Old English FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Danelaw • Danes raid England (834), establish Kingdom in York (865) • Danelaw: Danish law in force over that part of England under Viking rule after c. 878 • word also used to describe the land itself FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

legal and other words from Old Norse: David Mellinkoff, The Language of the Law (1963) • • law bye-law outlaw in-law wrong gift loan sale • • trust bond birth to die crook ill wreck FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

811 Charles II France grants lands in Normandy to Viking chief Rollo FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

tomb of Rollo in Rouen cathedral, 13 th C FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Lord's Prayer, 10 th c. – 1 [. . ]g fæder, þu þe on heofonum eardast, – 2 geweorðad wuldres dreame. Sy þinum weorcum halgad – 3 noma niþþa bearnum; þu eart nergend wera. – 4 Cyme þin rice wide, ond þin rædfæst willa – 5 aræred under rodores hrofe, eac þon on rumre foldan. – 6 Syle us to dæge domfæstne blæd, – 7 hlaf userne, helpend wera, – 8 þone singalan, soðfæst meotod. – 9 Ne læt usic costunga cnyssan to swiðe, – 10 ac þu us freodom gief, folca waldend, – 11 from yfla gewham, a to widan feore. FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

1000 only surviving manuscript of Beowulf FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Eadwine v Eanwene (date before 1038) + HER swutelad on dissum gewrite daet an scirgemot saet Aegelnodes stane be Cnutes daege inges. Ðaer saeton Aedelstan biscop, and Ranig ealdorman, and Eadwine daes ealddormannes [sunu], and Leofwine Wulfsiges sunu, and Ðurcil Hwita, and Tofig Pruda com daer on daes cinges aerende; and daer waes Bryning scirgerefa, and Aegelweard aet Frome, and Leofwine aet Frome, and Godri aet Stoce, and ealle da degnas on Herefordscire. Ða com daer farende to dam gemote Eadwine Eanwene sunu, and space daer on his agene modor aefter summon daele landes, daet waes Weolintun and Cyrdes leah. Ða acsode de bisceop hwa sceolde andswerian for his modor; da andsweorode Ðurcil Hwita and saede daet he sceolde gif he da talu cude. Ða he da talu na ne cude, da sceawode man dreo degnas of dam gemote [da sceoldan ridan] daer heo waes, and daet waes aet Faeliglaeh, daet waes Leofwine aet Frome, and Aegelsig de reada, and Winsig scaegdman. And da da heo to hire common, da acsodon heo hwyle talu heo haefde ymbe da land de hire sunu aefter space. Ða saede heo daet heo nan land haefde de he him aht to gebyrede, and gebealh heo swide eorlice wid hire suna and gecleopade da Leoflaede hire magan to hire, Ðurcilles wif, and beforan heom to hire dus cwaed: Her sit Leoflaed min maege, de ic geann aegder ge mines landes, ge mines goldes, ge hraeglaes, ge reafes, ge ealles de ic ah, aefter minon daege. And heo syddan to dam degnon cwaed: Dod degnlice and wel! Abeodad mine aerende to dam gemote beforan eallum dam godan mannum, and cydad heom hwaem ic mines landes geunnan haebbe, and ealre minre aehte; and minan agenan suna naefre nan ding; and biddad heom beon disses to gewitnesse. And heo da dwae dydon; ridon to dam gemote and cyddon eallon dam godan amannum hwaet heo on heom geled haefde. Ða astond Ðurcil Hwita up on da gemote and baed ealle da daegnas syllan his wife da landes claene de hire maege hire geude, and heo dwa dydon; and Ðurcil rad da sancta Aedelberhtes mynstre, be ealles daes folces leafe and gewitnesse, and let settan on ane Cristes boc. FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Eadwine v Eanwene (date before 1038): translation + HERE is made known in this writing that a shire-gemot sat at Aylton in King Cnut’s day. There sat Bishop Æthelstan, and Ealdorman Ranig, and Eadwine, [son] of the ealdorman, and Lefowine, son of Wulfsig, and Thirkil White; and Tofig Proud came there on the king’s errand; and there was sheriff ryning, and Ægelweard of Frome, and Leofwine of Frome, and Godric of Stoke, and all the thanes of Herefordshire. Then came there Eadwine, son of Eanwene, faring to the gemot, and made claim against his own mother for a piece of land; namely, Wellington and Cradley. Then asked the bishop who was to answer for his mother; then answered Thurkil White and said that it was his part [to do so], if he knew the case. And as he did not know the case, they appointed three thanes from the gemot, who should ride where she was, namely, at Fawley: these were Leofwine of Frome, and Ægelsie the Red, and Winsie Shipman. And when the came to her, then asked they what tale she had about the lands which her son sued for. Then said she that she had no land that belonged to him in any way, and she was vehemently angry with her son, and called her kinswoman Leofled, Thrukil’s wife, to her, and said to her before them thus: Here sits Leofled, my kinswoman, whom I grant both my land my gold, both raiment and garment, and all that I own, after my day. And she afterwards said to the thanes: Do thanelike and well! Declare my errand to the gemot before all the good men, and make known to them whom I have granted my land to, and all my property; and to my own son nothing whatever; and ask them to be witness to this. And they then did so, rode to the gemot, and make known to all the good men what she had laid on them. Then Thurkil White stood up in the gemot and asked all the thanes to give his wife clear the lands that her kinswoman granted her, and they did so. And Thurkil rode then to Saint Æthelbert’s minster, by leave and witness of the whole people, and caused [this] to be recorded in a church book. FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Edward ‘The Confessor’ (1042 -1066 AD) • Edward grew up in exile in Normandy and spoke French • brought many Norman clergymen and nobles to England during his twenty-four year reign • In 1051 he named William, Duke of Normandy, as his heir FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Edward ‘The Confessor’ (1042 -1066 AD) • no children as Edward had taken a vow of celibacy • The English witan favoured Harold, son of a powerful English earl • Harold was crowned king of England on the same day that Edward the Confessor was buried FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Harold Godwinson (1022 -1066) • Harold's father was Godwin, the powerful Earl of Wessex, covering southernmost third of England • married Gytha Thorkelsdættir • became Earl of East Anglia in 1045 • suceeded father on latter‘s death 1053 FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Harald Hardrada King of Norway (1047 -1066) FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Harald Hardrada King of Norway (1047 -1066) • related to King Canute, King of England 10161032 • conquered York with 300 ships • 25 th September killed at the battle of Stamford Bridge • Norse army left in 24 ships • at left, Norwegian tapestry from 1180 AD FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Guillaume, Duc de Normandie (1028 -1087) • gathered other Frenchspeaking nobles, amassed an army of perhaps 5, 000 -6, 000 • 27 th September 1066, two days after Harold’s victory over the Norse army, Guillaume crossed the English Channel FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Bayeux Tapestry FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

1086 population statistics: . Population of England est. 2 million • slaves 9 % • serfs 85 % • burghers and townspeople 3. 5 % • clerics (priests, monks, nuns) ½ % • knights and nobles 1 % FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Hunting Writ, William I (1066 -1087) Willem king gret Gosfregð scirgerefan and ealle þa burhwaru binnan Lundene freondlice. And ic beode eow þat ge on Lanfrances lande archbisceopes þe gebyrað into Hergan ne mman ne heort ne hindan ne hran, ne ge nates hwon ðærinne æig ðing huntian butan ðam he rylf bebyt oððe leofe togyfð. Translation: King William extends friendly greeting to Geoffrey the sheriff and all the citizens of London. And I order you that you not take stags or hinds or other deer from the land of Archbishop Lanfranc at the manor of Harrow, and that you not hunt anything there without the archbishop's order or licence. FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

a case from 1098 AD Hac fide in ipso proficiente, ad hoc quoque lapsus est ut Dei judicio incredulus fieret, injustitiaeque illud arguens, Deum aut facta hominum ignorare aut aequitatis ea lance nolle pensare, astrueret. Exempli causa, Quinquaginta circiter viri, quibus adhuc illis diebus ex antiqua Anglorum ingenuitate divitiarum quaedam vestigia arridere videbantur, capti sunt et calumniati quod cervos regis ceperint, mactaverint, manducaverint. Negant illi. Unde statim ad judicium rapti judicantur injectam calumniam examine igniti ferri a se propulsare debere. Statuto itaque die, praefixi poenae judicii pariter subacti sunt, remota pietate et misericordia. Erat ergo miseriam videre. Verum Omnipotens Deus, cui misericordiam et judicium canit Davidicus psalmus, innocentiam eorum, servatis misericorditer ab exustione manibus omnium, cunctis ostendit, et malitia hominum eos impie destruere cupientium quam injusta fuerit justo judicio declaravit. Igitur cum principi esset relatum, condemnatos illos tertio judicii die simul omnes inustis manibus apparuisse, stomachatus taliter fertur respondisse: ''Quid est hoc? Deus est justus judex? Pereat qui deinceps hoc crediderit. Quare, per hoc et hoc, meo judicio amodo respondebitur, non Dei, quod pro voto cujusque hinc inde plicatur. '' FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

a case from 1098 AD: translation As he [king William Rufus] became more and more confirmed in this belief, he fell also into such a state of mind that he became sceptical of God's judgment and, accusing it of injustice, asserted that God either has no knowledge of men's actions or does not weigh them in an equal balance. As an instance of this there is the following story. Some fifty men, who in those days seemed still blessed with some traces of wealth from the old English nobility, were apprehended and falsely accused of having taken, killed and eaten the king's deer. They denied it. Thereupon they were promptly hauled off to the seat of judgment where judgment was given that they must clear themselves of the accusation brought against them by the ordeal of the red-hot iron. So a day was fixed, and without scruple or mercy they were made to undergo the punishment prescribed by that judgment. It was a pitiful sight. But Almighty God, whose mercy and judgment are celebrated in the psalter of David, by mercifully preserving the hands of all of them from burning made clear to all their innocence, and by His just judgment declared how unjust was the malice of the men who so wickedly sought to ruin them. When the king was told that on the third day after the ordeal these men who had been condemned all presented themselves in a body with hands un-burnt, he is said to have exclaimed in disgust: ''What is this? God a just judge? Perish the man who after this believes so. For the future, by this and that I swear it, answer shall be made to my judgment, not to God's, which inclines to one side or the other in answer to each man's prayer. ''' FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Norman influence on language • Anglo-Saxon – almost ceased to have a literary history – but was enriched with a second vocabulary of Norman words, ideas, and refinements – lost its formality of inflections and terminations, and became more flexible and simple • Norman French – the tongue of the court, the aristocracy, the schools, the lawyers, and judges – drew its inspiration from the Continent – until the loss of Normandy (1204), when the Normans began to learn English FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Henry I (1068 -1135) • extended jurisdiction of royal courts • sent (French-speaking) members of the small council as judges on circuit • who applied universal, i. e. , ‘common’ law, lex communis in Latin, commune lei in Norman. French • to gain favour with Saxons, Henry married daughter of Malcolm III of Scotland his Saxon wife FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Ranulf de Glanvil (? - 1190) • Commissioned Treatise on the Laws and Customs of the Kingdom of England • first serious book on the common law • influenced by Roman law, but English in substance • standard textbook of English law until Bracton’s treatise FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

early painting of Divinity Schools, Oxford FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Henry de Bracton, c. 1210 -1268 • built on work of others • rational systematization of entire English law • examples from cases • largely in terms of the ius commune, a combination of Roman and canon law taught at universities FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

John (1167 -1216) • 1204 lost Normandy • raised taxes to win it back • barons revolted and seized London • 1215 signed Magna Carta FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

1215 Magna Carta • no scutage or aid levied without the consent of the great council • “No freeman shall be arrested and imprisoned, or dispossessed, or outlawed, or banished, or in any way molested; nor will we set forth against him, nor send against him, unless by the lawful judgment of his peers and by the law of the land. ” • chief significance: assertion of the supremacy of law over the king • pope declared the great charter void FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

1155 -1187 • ruling class speak French • establishment of primogeniture meant only younger sons would mingle with the nonaristocratic, native population • 1167 Henry II banned English students from attending University of Paris • 1187 Oxford University founded FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

Simon de Montfort (1208 - 1265) • leader of 13 th century constitutional reformers • Henry's brother-in-law • born and educated in France • negociated Provisions of Oxford, that the king should not take decisions without consulting his barons FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

STATUTE OF MARLBOROUGH (1267), 52 Hen 3 PREAMBLE Anno gratie MCCLX septimo, regni autem Domini H. Regis nlii Regis Johannis quinquagesimo secundo, in Octabus Sanci Martini, providente ipso Domino Rege, ad regni sui Anglie meliorationem et exhibitionem justicie prout regalis officii exposcit utilitas meliorem, convocatis discretioribus ejusdem regni tam ex majoribus quam minoribus; provisum est & statutum ac concorditur ordinatum, ut cuum regnum Anglie multis tribulationibus et dissensionum incomodis nuper deperssum, reformatione legum et Jurium, quibus pax et transquillitas incolarum conservetur, indigeat, at quod remedium salubre per ipsem Regem et suos fideles oportuit, adhiberi, provisiones, ordinationes et statuta subsrcipta, ab omnibus regni ipsius incolis tam majoribus quam minoribus firmiter ac inviolabiliter temporibus perpetuis observentur. c. 23 Item firmares tempore firmarum suarum vastum, vendicionem seu exilium non faciant, in domibus, biscis, hominibus, nec de aliquibus ad tenementa quae ad firmam habent spectantibus [? ] concessionem [per scripturam] [sive conventionis mencionem] quod hoc facere possint. Et si fecerint et sup hoc convincantur dampna plene refundent, et graviter per minam puniantr FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

PREAMBLE STATUTE OF MARLBOROUGH (1267), 52 Hen 3: translation In the year of grace, one thousand two hundred sixty-seven, the two and fiftieth year of the reign of King Henry, son of King John, in the utas of Saint Martin, the said King our lord providing for the better estate of his realm of England, and for the more speedy ministration of justice, as belongeth to the office of a King, the more discreet men of the realm being called together, as well of the higher as of the lower estate: [It was provided, agreed, and ordained, that whereas the realm of England of late had been disquieted with manifold troubles and dissentions; for the reformation whereof statutes and laws be right necessary, whereby the peace and tranquility of the people must be observed; wherein the King, intending to devise convenient remedy, hath made these acts, ordinances, and statutes underwritten, which he willeth to be observed for ever firmly and inviolably of all his subjects as well high as low. ] c. 23 . . . fermers, during their terms, shall not make waste, sale, nor exile of [house] woods, and men, nor of anything belonging to the tenements that they have to ferm, without special licence had by writing of covenant, making mention that they may do it; which thing if they do, and thereof be convict, they shall yield full damages, and shall be punished my amerciament grievously. FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

The Year Books • unofficial, verbatim reports of legal proceedings • over 20, 000 cases recorded • 1268 to 1535 • in French, the language of the courts • 1270 most of the new French vocabulary had been settled FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

a case report from 1319 Un Richard porta brief de dette vers un abbé et soun commoygne, et dit qe le moygne taunt com il fut seculer avoit apromté de ly x livres, a payer a certeyn jour, a quel jour il ne paya poynt; et de ceo tendist sute saunz especialté. Migg'. Il demaunde ceste dette par resoun de un aprest fet au moygne taunt com il fut seculer, lequel homme est mort quaunt a la ley de terre en taunt com il est profés en religioun; et demaundoms jugement si a tiel demoustraunce devez estre resceu. Scrop. Quant l'abbé resceit un moygne il se deit aviser q'il ne seit chargé de dette, quar il ly deit resceyvre ove sa charge auxi com le baroun fra sa femme. Herle. Ceo n'est pas semblable, quar le moygne est mort quant a la ley, et si n'est pas la femme. Berr'. Pur ceo qe vous n'avez qe sute, a quei homme ne put alayer, mes l'abbé ne put alayer le fet soun moygne, par quei agarde la court qe vous ne pregnez rien par vostre brief. Et Toud' et Frisk' disoyent qe cel jugement ust esté mesq'il ust eu fet: quar autrement ensuereit meschef, qe par fet de un seculer la mesoun purra estre chargé à touz jours. Set contra posissionem potest fieri opinabilis questio etc. FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

a case report from 1319: translation One Richard brought a writ of debt against an abbot and a monk of his house, and he said that the monk while yet secular had borrowed from him ten pounds, to be paid back on a certain day, and on that day the monk did not pay; and of this he tendered suit without showing specialty. Miggele. He demands this debt by reason of a loan made to a monk while he was yet secular. Now that man is dead as regards the law of the land, inasmuch as he has professed religious vows, so we ask judgment whether you should be received to make such a demonstrance. Scrope. When the abbot receives a monk he must consider whether he is not charged with debt, for he must receive him with his charge as a husband shall his wife. Herle. That is a different matter, for the monk is dead at law and the wife is not. BEREFORD, C. J. Since you only tender suit which can involve no wager of law, [since] the abbot cannot wage law upon the act of one of his monks, the court awards that you take nothing by your writ. And Toudeby and Friskeney said the judgment would have been the same even if the demandant had a deed. Otherwise mischief would have resulted, for the house [would] be charged for all time by the deed of a secular. But against this position an arguable question could be raised. FFA Languages of the Common Law Prof. Dr. Thomas Lundmark

FFA Languages of the Common Law Prof. Dr. Thomas Lundmark