The formation of feudal law in England took place under the influence of a number of factors:

The insular position of the state, which weakened the influence of Roman law;

the Norman Conquest of the 11th century, during which strong royal power and the supreme jurisdiction of the king over his subjects were established;

Preservation of continuity in English law from Anglo-Saxon customs to common law.

Historically, the first sources of English law were local legal customs based on a system of mutual responsibility.

In the XII century. a system of national royal courts is being formed, a common law is being formed for the entire state. It is based on the idea of ​​the supreme jurisdiction of the king in relation to his subjects. An important stage in the formation of a common law system was the judicial reform of Henry II Plantagenet (1154-1189), which expanded the competence of the royal court to the detriment of the seigneurial courts. Prior to Henry II, senior courts considered all civil cases on domains and land holdings, property disputes. Sheriffs had the right to criminal proceedings, but criminal cases on the basis of immunity also fell into the seigneurial courts. In 1176, the country was divided into six judicial districts, to which traveling royal courts from representatives of the royal curia were sent. They dealt with "lawsuits of the crown" - they considered the claims of the free population in cases of interest from the point of view of the state (for example, the feudal rights of the monarch, violations of the royal peace, abuse of officials). All serious criminal offenses were removed from the seigneurial courts. Every free man could acquire an order of right and demand that his case be transferred from the seigneurial to the royal court. The advantage of royal justice was that the judges, together with the sheriffs, conducted an investigation, and the case was considered with the participation of the jury, and not with the help of "God's court." The prosecution was supported by the Grand (accusatory) jury of 23 jurors, on the basis of their presentation, charges were brought against a specific person. Later, a small jury of 12 jurors appeared in the royal court, with their participation the case was considered on the merits and a verdict was pronounced.

In the royal courts, it was allowed to appeal to a higher authority - the royal curia. Three higher courts of common law emerged from the Royal Council - the Court of the Treasury (financial disputes), the Court of General Claims (civil cases), the Court of the Queen's Bench (appeal and supervisory authority for lower courts). The Court of King's Bench came into existence in 1178, consisting of five jurists, two clerics and three laity. He was constantly with the king and considered criminal cases and appeals. Later, the Court of General Litigation was organized in Westminster. He sat without the participation of the king and mainly considered claims for the protection of land holdings, and also coordinated the work of the judiciary.

The main source of common law is judicial precedents - decisions of the courts in a particular case, which were given binding force, and later they were applied in similar cases. The doctrine of judicial precedent established its obligatory nature, i.e. linked the activities of the courts to previous judicial decisions. Decisions of the House of Lords, the highest court of the kingdom, were recognized as binding on all courts. The decisions of the higher courts are binding on the lower courts and are recommended in the name of the crown for subsequent justice. Court records were published in "Litigation Scrolls".

Common law also developed with the help of orders from the royal office. They were created for each specific case and contained a statement from the injured party, a requirement for the offender to respond to the complaint, and an order for the sheriff to eliminate the violation.

shackled rights. From the 13th century registers of orders began to be published - original reference books.

The accumulation of royal orders and judicial practice led to the emergence of another source of English case law - the legal treatises of English jurists.

A feature of English law was the early established royal legislation - statutory law. At the same time, the legislation had the character of a secondary source of law in relation to the judicial precedent. Royal assizes, charters, statutes determined the basic principles, form and content of common law.

15. "Right of justice" in England

The English legal system is characterized by dualism - the coexistence of common law and the law of justice. The right of justice takes shape in the Middle Ages as a form of the implementation of royal "mercy", royal justice. The reasons for its appearance are associated with formalism, inflexibility, slowness and high cost of common law, which did not allow freedom of action. With the development of civil turnover, new categories of cases began to appear that did not enjoy judicial protection in common law courts. Remedies in the common law were not disputed: it was enough for the plaintiff to find an order appropriate to his case, and he was entitled to judicial protection. The absence of a suitable form of claim, non-compliance with formal procedures could deprive the victim of remedies even contrary to the requirements of justice. Therefore, the number of appeals to the king increased.

In 1474, the Chancellor's Court was created to decide cases "in justice" and "in conscience." It dealt with complaints of denials of relief or unfair issuance of a common law order. The chancellor's court was not bound by formal procedures and could create new rights and remedies based on the concept of justice.

Basic principles of the law of justice:

Justice means equality of arms;

The law of justice supplements the common law, and does not cancel it (in the 17th century, the priority of the norms of the law of justice over the common law was established by royal decree);

In case of conflicts of rights, those rights that arose earlier in time are protected.

The courts of justice had jurisdiction over cases in the field of law of obligations (common law did not consider disputes over contracts between individuals), property rights (rent, trust, life tenure), contract law (oral contracts were not subject to judicial protection in common law).

New procedural forms of equity were based on filing a petition outlining the circumstances of the case. The defendant had to draw up a response to the petition's approval under oath (the beginning of a written questioning of the parties). Written testimonies of witnesses were given where necessary. After the arguments of the parties, the chancellor issued an order in his own name. It could be appealed to the House of Lords. The chancellor had the right to force the parties to comply with their decisions (to issue an order to summon the defendant to court under threat of a fine). The chancellor's court could summarily (single-handedly) punish those responsible for corruption.

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 state power. 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 common law for the whole country. Traveling royal judges played a special role in this process. 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 the royal courts, uniform rules of law, the so-called "common law", developed. Judicial precedents appear, consisting of 3 parts: a statement of the facts, the rules of common law in this case, the determination of the measure of responsibility. Since the 15th century in England, the so-called "equity".Legal proceedings are carried out by the Lord Chancellor alone and in writing. 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. There were crosses in England who were personally free, land dependent - freeholders, landed and personally dependent - vilans. Family law. Marriage and relations between spouses were regulated by canon law. Marriage is a sacrament, the union of Christ and the Church, Catholic marriage is indissoluble. Property relations were regulated by "common law": the husband is in charge, the wife is incapacitated. The husband's right to corporal punishment of his wife: Eng. with a rope no thicker than a wife’s thumb, THERE are the same with children. Bastards are powerless, but it is possible that they can be legitimized by a last marriage. 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: trizn (treason), felony (serious criminal offense) and misdemeanors (misdemeanors). The concept of "felony" was first developed - murder, arson, rape, robbery. The main punishment for a felony was the death penalty. In the XIII-XIV centuries. In England, the jury is being strengthened both in criminal and civil cases.

Sources and main features of feudal law in Germany

The main source of law in Germany, as in France, was custom. In the thirteenth century attempts were made to record these customs. The most famous of these recordings are "Saxon mirror" and "Swabian mirror". "Saxon mirror" consisted of two parts: 1) zemstvo law, which regulates civil, criminal, procedural and state-legal relations between free citizens of the Sheffen estate, and 2) "fief law", which regulates relations of vassalage between feudal lords. It was used in the northern and northeastern lands of Germany. The "Swabian mirror", which regulated approximately the same issues, prevailed in southern Germany. A feature of Germany was the predominant role of Roman law, which in 1495 was recognized as the main source of the law of the empire and received in full. One of the results of this reception was the creation of codes of criminal and civil law. Feudal land relations in Germany, as in France, were governed by a complex hierarchy of vassalage. A feature of German fief law was that two fiefs could be endowed at once, one person received fief in possession, the other the right to "wait", i.e. the right to receive a fief if its owner does not leave a legitimate heir. Allods also existed in Germany. Not only princes and counts had the right to own land, but also a part of the free peasantry, belonging to the Sheffen estate. Family and inheritance law. The conclusion of marriage and the relationship between spouses were regulated by canon law. Property relations were characterized by the community of property under the control of the husband. The purchase of a bride, according to ancient German custom, was replaced by the payment to the father of the bride of the purchase price (vittum), which the father passed on to her after marriage. After marriage, the husband had to give his wife the so-called "morning gift". Wittum and the "morning gift" subsequently constituted the widow's share. A wife could not alienate anything from her property without the consent of her husband. Criminal law and process. During the period of the early feudal monarchy in Germany, the so-called "fist law" was established, authorizing the right to self-defense of the victim, if the court could not do this. But in fact - the arbitrariness of the right of the "strong". From the 11th century, attempts began to establish a "zemstvo peace" and to limit the "fist law". Violations of the “zemstvo peace” began to include: 1) disobedience to church authorities, 2) heresy, 3) revenge for insults, 4) illegal collection of duties, 5) robbery on the highway, 6) counterfeiting, 7) rebellion against the empire, etc. d.

Caroline

In 1532, under Emperor Charles V, an all-German code of criminal procedure was adopted, which received the name "Caroline". "Carolina" provides for a rather numerous range of crimes: 1) state crimes (treason, rebellion, violations of the zemstvo peace, etc.); 2) against religion (blasphemy, witchcraft, etc.); 3) against a person (murder, poisoning, slander, etc.); 4) against morality (incest, rape, bigamy, adultery, etc.); 5) against property (theft, robbery, arson, etc.); 6) crimes against the administration of justice (perjury, false oath); 7) crimes against the order of trade - measurement and body kit. Carolina also highlights attempted crime, complicity (subdivided according to complicity before the commission of the crime, during, and after), negligence, necessary defense, etc. purpose of punishment: intimidation, retribution, extraction of mater. Benefits from the individual, protection of society from the offender, satisfying the victim. The system of testimony in Carolina is based on the principle of elimination. Provided: 1) the death penalty; 2) self-mutilation and corporal punishment; 3) disgraceful punishments; 4) expulsion from the country; 5) a fine as the main punishment and additional ones (accompanying imprisonment, tormenting with red-hot tongs, exhibiting at the pillory, dragging to the place of execution, etc.).

There were mitigating (frivolity, young age, extradition of accomplices, anger) and aggravating (relapse, notoriety, major damage, group harassment, low social status) guilt circumstances. The Carolina process was divided into 3 stages: preliminary inquiry, investigation and trial. Inquisition. court. process. The accusation was also possible on behalf of the state by a judge. In such cases, the investigation was conducted at the initiative of the court and was not limited by time limits. Torture was used to extract a confession. Witness. testimony was complete if it was given by at least 2 witnesses. Features of punishments in the Middle Ages: plurality, uncertainty (at the discretion of the judge).

34. Legislation of the English Revolution of 1640-49.

Revolution - the transformation of all spheres of public life (political, economic, social, ideological), which are carried out with the use of mass violence and involve all sections of the main sections of the population.

The purpose of bourgeois revolutions:

Transformations in the sphere of the economy (the split nature of feudal property is replaced by private property),

Transformations in the political sphere (proclaiming basic rights and freedoms - speech, unions, information)

Establishment of personal rights (immunity, property, judicial protection) The English Revolution is usually divided into 2 stages:

I) 1640 - 1649 - Great rebellion.

1640-1642 - opposition of the king and his supporters (royalists) against the Puritans.

1642-1648/9-two Civil Wars

1642-1646 - parliament against the king

1646-1648/9 - appearance of the Levellers, war of the new model army against the Presbyterian Parliament

1649-1653 - Independent Republic

1653-1659 - Cromwell Protectorate

1660-1688 - Restoration of the monarchy

II) 1688 - Glorious Revolution.

Key Features:

1Unfinished character (the power of the landed aristocracy remains both in the economy and in politics). 2Dependence on the landlords of the peasantry remains. 3 All political demands were formulated in a religious form (movement for faith and religious freedom, restoration of ancient rights and liberties.4 The main driving forces of the English revolution were the bourgeoisie in alliance with the new nobility (gentry). The main political currents that developed during the revolution: royalists ; Puritans (-Levelers (equalizers) - Diggers (Communists) - Independents; - Presvetorians)

1. The three-year act of 1641. - on the constancy of the activities of the parliament: - the frequency of convocation of the Parliament - 3 years; - the right to convene P. in addition to the king was given to the Lord Chancellor, 12 peers - P. cannot be dispersed for 50 days

The peaceful revolution ended when the people demanded the end of P.'s control over the king: the Civil War began.

2.Act 1 Gr.war:

1646 - Act on the abolition of the Chamber of Feder.Assemblies Noble duties are removed, but not the cross. Lenlord approved chat.property by nobles, but not by peasants.

3. Acts of the 2nd group of the war (1649):

1. Act of the House of Commons:

1.people source of power

2. The PO must sit in P. and represent the interests of the people;

3. Acts of software are obligatory for the people, regardless of peers

2. Sentence of the Upper Chamber of the court of the king: Karl Stewart - tyrant, murderer, enemy of a good nation sentenced to beheading

3. On the abolition of the House of Lords

4.about the abolition of the royal title

5.about the introduction of the republic

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FEDERAL AGENCY FOR EDUCATION

COURSE WORK

Topic Features of the feudal law of England

MOSCOW 2012

• 1. Sources of law
• 2. common law
• 3. Equity
• 4. Canon law
• 5. Legal practices
• 6. Ownership
• 7. Law of Obligations
• 8. Criminal law
• 9. Marriage and family law
• 10. Trial
• Conclusion
• Literature
• 1. Sources of law
• The feudal law of England was distinguished by its complexity, intricacy, and casuistry, which was due to the special ways of its formation, in particular, the fact that it did not experience the effective influence of Roman law, Roman legal thought.
• Before the Norman Conquest in the 11th century. the main sources of law in England were custom and royal legislation. The proclamation of laws very early became among the Anglo-Saxon kings one of the means of raising their prestige and satisfying material claims. The first legal collections began to appear here as early as the 6th century. In 601-604. Ethelbert's Truth was proclaimed in Kent. In the 7th century was compiled in Wessex by Pravda Ine, in the 9th century. in the first relatively centralized state of the Anglo-Saxons - Alfred's Truth, in the 11th century - Knut's Laws.
• All these collections reflected the gradual processes of social stratification, the feudalization of the Anglo-Saxon society, the formation of statehood, the influence of the Christian religion, adopted here at the beginning of the 7th century. Ethelbert's Truth was based on the norms of old customary law, but it also reflected new legal provisions establishing, for example, increased fines for crimes against the king and the church, pecuniary penalties of the king in a number of free claims (cases of theft, murder). So, for the murder of a free man, not only the wergeld was paid to the family of the murdered, but also a fine (50 shillings) to the king as compensation to the master.
• In the ninth century the king is already acting as the main guarantor of the "royal world", as the protector and master of his subjects. The supreme jurisdiction of the king is established for a number of offenses. The protection of the king's life is being strengthened. Maliciousness against his life carries the death penalty.
• Based on customary law, subsequent collections borrowed the legal norms of the previous ones. King Alfred, for example, when creating his truth, pointed out that he borrowed many of the previous laws, especially Ethelberht, "which he liked," but omitted much "on the advice of the wise."
• The policy of the first Norman kings, starting with William the Conqueror, was also aimed at observing the "old and good Anglo-Saxon customs." At this time, therefore, the tradition of stable historical continuity of English law was already emerging, and the role of the main guarantor of compliance with its norms was transferred to a strong royal power, to the emerging system of national royal courts.

2. Common law

O m general right m in (English common law) - a single system of precedents, common to the whole of Great Britain, one of the components of the Anglo-Saxon legal system, along with the law of equity (English law of equity). It developed in the XIII-XIV centuries on the basis of local customs and the practice of royal courts. Judicial precedent is recognized as the main source of law in the common law system.

In the XII-XIII centuries, the term common law (lat. jus commune) was the concept of Roman canon law and denoted that part of it that was applied throughout the Christian world, in contrast to local customs (lat. lex terrae). From canon law, this term passed into the system of royal courts that was created in this era, which was also common to all of medieval England and existed along with local feudal courts - county courts.

The formation of the "common law" (Common law) of the country was connected with the activities on a permanent basis of royal traveling judges under Henry II (XII century). It considered, first of all, "lawsuits of the crown", that is, cases of direct interest from the point of view of possible revenues to the treasury: about the feudal rights of the monarch, about the discovery of treasures, about suspicious deaths and violations of the royal peace, about the abuses of royal officials.

In addition, they also considered "general lawsuits" or "lawsuits of the people" on complaints received by the king. One of the first central royal courts was the court of "general litigation", established in 1180. At the beginning of the XIII century. the functions of resolving cases on complaints to the king were transferred to the "Court of the King's Bench".

The circuit courts began to unify the rules of local customary law and create "common law" with the help of the royal office, which issued special orders (writ), usually at the request of the injured party, which contained a requirement for the offender or sheriff to execute it and eliminate the violated rights of the complainant. Then they began to issue special court orders, the requirement of which was addressed directly to the offender - to appear "before us or our judges at Westminster" and give an answer to the complaint, that is, to refute or admit the violation of the rights of another person. Over time, the orders began to clearly formulate the type of requirement, claim; orders began to be classified according to certain types of offenses. The plaintiff thus received confidence that if the violation of his rights, which found expression in the relevant order, was proved in court, he would win the case.

This was facilitated primarily by the assizes of Assisi (Late Latin assisae - meetings) - a meeting, a court session.

In England, as early as the 12th century, the name assisa or assisia was given to a court in which cases were decided not by a duel, as was allowed from the time of the conquest of England by the Normans and in civil trials, but on the basis of a conscientious investigation of the truth. In this proceedings, especially when considering disputed land issues, 12 neighbors who knew the case were invited as witnesses and judges to give their vote under oath.

Since the XIII century, the "judgment of God" was also canceled in criminal trials, with its replacement by the verdict of the assembly of people's judges. Since then, the name assizes began to be given to jury trials and their legal proceedings, not only in England, but also in France and in those countries that introduced a judicial system similar to French. Henry II, who established a uniform way of considering civil litigations about land. The most famous is the "Great Assize", which provided for a special form of claim for the establishment of legal title to the land, as well as a number of possessory assizes: "On the death of the predecessor" (on the transfer of free holding to the heirs); assize "On the new seizure" (on the expansion by "new seizures" of the dominal landed property of the king); assis "On the last submission to the parish" (on the right of the landowner to present his candidate for the position of priest in the parish church). Two large assizes - Clarendon (1166) and Northampton (1176) were issued in the form of instructions to traveling judges.

Since on early stage formation of "common law" royal orders were issued for each specific case, then by the beginning of the XIII century. there were so many of them that it was difficult to sort through them. In this regard, in the XIII century. original reference books on "common law" began to be published - registers of orders, in which they began to be recorded in the form of samples of claims, in a strict legal form.

Since that time, the parties could not freely justify their rights, but were obliged to rely on these samples, which inevitably had to lead to the ossification of the system of orders, to a reduction in the influx of new claims formulas. And so it happened. If the Lord Chancellor, as head of the royal office, issued any order on his own initiative, the judges often refused to apply it. Restrictions on the issuance of new orders were reflected in the Oxford Provisions in 1258, during the period of intensification of the struggle of large feudal lords (barons) with the king.

So great was the flow of complaints that came to the king and did not find judicial protection that he forced the English king by the Statute of Westminster of 1285 to order the Lord Chancellor, as the keeper of the "register of orders" to extend the operation of the "common law" by issuing new orders by analogy, similar to the previous ones. . After that, the "register of orders" was replenished with a universal claim "in relation to this case" (action in the case). But even with the help of these temporary measures, it was impossible to foresee all life situations. The "common law" continued to ossify. From the 15th century the chancellor no longer drew up the formula of the order, it was written independently by the plaintiff, who only applied for the seal of the king.

Another channel for the formation of the norms of "common law" was the very practice of the royal courts. "Records of court cases, first in the form of a brief, then a detailed statement of the parties and the reasons for the court decision, were kept from the moment the institution of traveling judges arose. From the beginning of the 13th century, court records began to be published in the Scrolls of Litigation. The materials contained in them, motivations for satisfaction claim, confirmed the existence of a particular custom and could be used in subsequent judicial practice as a precedent.The chaotic nature of the records, however, made it extremely difficult for judges to find the information they needed.From the middle of the 13th century, this information about the most important court cases of a judge they began to draw from official reports - "Yearbooks. " In 1535 they were replaced by systematized court reports of private compilers.

Together with the publication of the materials of court cases, the theory of judicial precedent began to take shape, which was still far from being completed at that time. The guiding principle enshrined in the previous decision of the royal courts on a certain legal issue began to gradually acquire the force of a model when considering similar issues in the future.

In the XIV century. in England, market, private property relations are rapidly developing, but they are not adequately reflected in the norms of "common law", the formalism of which prevents this. Why were the ready-made recipes for regulating private property relations of Roman law at that time not in demand in England? The answer must be sought primarily in the history of the formation of English courts.

The Norman Conquest brought England closer to the intellectual life of the Continent. Immediately after him, Irnerius begins to read his lectures on Justinian's Digests in Bologna, and then Gratian creates his "decrees", which became the basis of canon law. Courses on Roman and canon law are taught at Oxford, and canon law schools are being set up at monasteries.

The first English judges, the same clerics and officials, were open to the high achievements of Roman legal culture. But from the end of the thirteenth century under Edward I they began to be appointed from professionals. It was then that closed corporations of judges were formed with their courtyards (Inn "s of Court), where future judges and legal defenders (baristers and solicitors) were trained. Having monopolized the protection of the English world order in their hands, they acted, protecting primarily their professional interests, as ardent apologists "common law", proving its incomparable advantages over Roman law. At the same time, it was argued that they do not create law, but only open its eternally existing norms. In addition, the original system of "common law" already in the XIV century occupied a strong position in this country.

3. Right of justice

Equity is the name given to a set of legal principles that operate within the English common law tradition, supplementing strict rules where the requirement of their formal implementation might be too rigid. In civil legal systems, such "general clauses" allow judges to apply codes more freely.

The right of justice had developed in England by the 14th century. Its origin is due to the fact that, due to the strict formalism of the common law, it was almost impossible for most people to file a claim in the royal courts, which forced many (including those who did not agree with the decisions made by the courts) to apply directly to the king, asking his about "mercy and justice" (hence the name of law). It was not the king personally who considered complaints, but the Lord Chancellor on his behalf. The number of complaints was high and constantly growing, so a special body was created under the Lord Chancellor with an established procedure for hearing cases, later called the "Chancellor's Court", also known as the "Court of Justice" (because it was believed that, since it was independent of the system common law, then the decision is guided only by the principles of justice). In the course of his work, norms based on specific cases - precedents - arose, which subsequently formed the system of justice. Most often, the law of justice was applied in the field of civil legal relations.

The result of formalism, high cost, slowness, the general inability of the "common law" to decisively transform in connection with changing historical conditions was the appearance in England in the XIV century. "court of justice" and the subsequent formation of another legal system, "rights of justice" (equity).

The emergence of the "court of justice" was associated with the activities of the Lord Chancellor - the "guide of the royal conscience", who, first on behalf of the king, and from 1474 on his own behalf, began to defend plaintiffs complaining of "bad justice", that that their abusers were not prosecuted, and they were not defended in the "common law" courts.

On the basis of the appeal of the victims to the king with a request "for the sake of God and mercy" to protect their rights, the Lord Chancellor began to issue orders to summon the offender, under pain of a fine, to the chancellor's court, where complaints were examined without a formal procedure, decisions were made, failure to comply with which threatened the defendant with imprisonment for basis of a special order for contempt of court. At the beginning of the XIV century. under Edward II, the apparatus under the Lord Chancellor finally turns into a court not bound by the norms of "common law", but guided by the norms of "justice".

The "law of justice" did not have a rigid determinism, leaving the decision of many issues at the mercy of the judges, which inevitably had to lead to the creation of a number of principles, restrictions, and the corresponding "toolkit" of justice. These principles began to be created as the decisions of the "courts of justice" accumulated. Judicial reports on pending cases began to be published late, from 1557, when the number of cases in the courts of justice increased dramatically.

The basic principles of the "law of justice", part of which was borrowed from the "common law", reduced to a certain system of norms in the 17th century, have retained their significance to this day. The main one is that the "right of justice" is the "mercy of the king", and not the original right of the victim. The "right of justice" cannot be claimed in all cases of violation of rights, since it is discretionary, that is, it depends on the discretion of the court.

Among other principles, the following may be noted: -- "right of justice" cannot be given to the detriment of the rights of persons based on "common law", unless these persons have committed any wrongful act, as a result of which it would be unjust for them to insist in your rights;

Where there is a conflict between the rules of "justice", the rule of "common law" applies;

Where there is a conflict of rights under the "law of equity", those rights that arose earlier in time should be protected;

Equality is justice. He who seeks justice must himself do justice;

- "the right of justice" recognizes the priority of the law, but does not allow reference to the law in order to achieve dishonorable intentions, etc.

The "law of justice" was not created to replace the "common law", but to give it greater efficiency by moving away from the old formal rules, to create means of protecting violated rights and interests in those areas public relations that were not covered by the "common law". If at first the "right of justice" supplemented the "common law", then over time, due to changed historical conditions, it began to come into direct conflict with it. The clashes between the "courts of justice" and the courts of "common law" began in 1616, when E. Cock, chief judge of the "Court of Common Claims" in Westminster, raised the question of whether the "court of justice" could decide after the corresponding decision of the court " common law" or instead of Him? Sharp conflict situation first of all, they caused the orders of the chancellor's court (inqunction), prohibiting the execution of certain decisions of the "common law" courts.

James I, the penultimate absolutist king in England, decided this conflict in favor of a "court of justice", whose judges defended the absolute and unlimited power of the monarch, who has the right to intervene "through his servants" in the administration of justice. The king issued a decree that in the case when the norms of "common law" and "rights of justice" are in conflict, the latter take precedence.

4. Canon law

Canon law in the Catholic Church is a set of norms issued by ecclesiastical authorities and contained in ecclesiastical canons, that is, in the rules relating to the structure of church institutions, the relationship between church and state, as well as the life of members of the Church.

The rules of canon law are binding on all members of the Church. Canon law is based on Divine law, however, at the same time, it takes into account the requirements of the revealed and natural laws in relation to a given place and time. In this regard, the Code of Canon Law, the main document containing the norms of canon law, is regularly republished. In addition to canon law common to the whole church, there is also a particular canon law relating to the law of individual churches.

The activity of ecclesiastical courts and, accordingly, the importance of the norms of canon law either increased or decreased in medieval England, depending on the complex ups and downs of the ongoing struggle of secular and ecclesiastical authorities to expand their jurisdiction. “Anyone who is accused of any violation of the peace of the Church,” said the law of William the Conqueror, “should appear at the place appointed by the bishop, and there make amends, as required not by the custom of a hundred, but in accordance with the requirements of the canons and ecclesiastical law."

The jurisdiction of the church extended not only to matters related to church property, marriage and family relations, wills, such crimes as heresy, blasphemy, etc. "She began to interfere in purely secular matters, for example, in disputes over contracts, "Breach of promise", on the grounds that there was a sin of "unjustified trust". Henry II led a decisive struggle against the expansion of the jurisdiction of church courts. At the beginning of his reign, in the list of forms of claims of royal courts, there are already claims "about the prohibition of church courts to deal with litigation about property and debts." The Statute of Edward 1 of 1285 forbids ecclesiastical courts from hearing "breach/promise" cases on the grounds that they are not purely "spiritual matters" requiring "moral correction".

Nevertheless, until the sixteenth century, before the establishment of the Anglican Church under King Henry VIII, no one denied the legitimacy of papal jurisdiction in such matters as orthodoxy of faith and worship, purity of morals, legality of marriages, legality of children, and the making of wills. In the same century, it was established by an Act of Parliament that, pending a proposed but never taken place revision of the norms of canon law, its operation in England remained. The only legislation to revise canon law was the ordinances of the Councils of Canterbury and York, enacted by Henry VIII under the title "Letters of business", according to which the rules of canon law must operate if they are consistent with the laws of the realm or the prerogatives of the crown and "are not contrary to and don't break them." However, the interpretation of the rules of canon law, such as inheritance by law and testament, belonged to the courts of "common law".

5. Legal practices

The special nature of the development of case law required an appeal to the works of English jurists, who very early began to play the role of guides in the labyrinths of the two systems of English law.

The first legal treatise appeared in England in the 12th century. It was written under Henry II, by his justiciar Glenville. This treatise was a commentary on the orders of the royal courts. A more detailed exposition of the "common law" norms belongs to the pen of Bracton (thirteenth century), a judge of the "Court of the King's Bench", who, following Glanville, tried to systematize and comment on the "common law" norms he had drawn from the "Litigation Scrolls". It is noteworthy that at atom Bracton used no less than 500 passages from Justinian's Digest, without reference to them.

From the 15th century scientific treatises appear already on the most important and complex issues of law. This is Littleton's work "On Land Holdings", as well as Fortescue's treatise with the very characteristic title "Praise to English Laws". The norms of statutory law are increasingly becoming the focus of attention of English lawyers, the importance of which is increasing with time.

At the beginning of the XVII century. the famous E. Cocke compiled the Institutions of the Laws of England, which consisted of four books. The first book contained a commentary on Littleton's treatise, the second contained a summary of the most significant statutes, the third was devoted to the norms of criminal law and the fourth "judicial system and legal proceedings. In the practice of English courts, the habit of referring to the writings of the most famous jurists is gradually being established, thus their works have acquired the character of original sources English law.

With the dominant distribution of case law in medieval English law, royal legislation and statutory law played an important role at all stages of its development, especially in critical eras.

Royal lawmaking in post-Norman times began with William the Conqueror. His first laws dealt with the relationship of royalty with the Christian Church. In 1067, William issues a law (decree) declaring that only the English king has the right to decide whether the church in Normandy and England should recognize the pope, that the king himself issues church laws through the church synod he created, and also has the right to cancel church punishments imposed on his barons and servants. In 1072, in gratitude for the recognition by the pope of his right to the English throne, the king passes a law on the separation of ecclesiastical courts from secular ones. Following this, a law is announced to prohibit the sale of people outside the country, to impose a fine on a hundred for the "secret murder" of a Norman, "until there is clear evidence that he was an Englishman." In 1114, one of the earliest collections of royal laws appears.

The laws of the king were called assizes, charters, but most often ordinances, statutes. The legislation of Henry II (XII century), Edward I (XIII century), nicknamed the English Justinian for his vigorous law-making activity, largely predetermined the form and content of "common law", developed its fundamental rules and principles.

Prior to the emergence of Parliament, and more precisely until the reign of Edward 1, there was no distinction between a royal ordinance and a statute. The Statute of Merton of 1235 predated the establishment of Parliament. Statutes of Westminster 1275, 1285, 1290 Edward I, designed to eliminate gaps in "common law", to strengthen royal control over the administration of justice, to limit the immune rights of feudal lords and land ownership of the church, etc., were adopted with the participation of parliament.

Statutes were originally designated by the names of the places in which they were adopted (the Statute of Merton of 1235, the Statute of Gloucester of 1276, etc.), but since the regular sittings of Parliament at Westminster, they have been called by the first two words of the legislative text.

Gradually, the name of the statute was assigned to an act adopted by parliament and signed by the king. Statutes - Acts of Parliament began to differ from other sources of law in medieval England in that their legality, in contrast to their interpretation, could not be discussed in court.

The concept of a statute, closer to a modern act of parliament, did not appear until 1327, when the communities turned to the king with a request to bring to his attention "general petitions" (containing often ready-made bills - bills) and receive "the answer of the king and his advice in writing form under the Great Seal of the Kingdom. Since that time, some legislative acts were adopted by the king "with the consent of the Council", others - "with the consent of Parliament." By reaffirming the right of the king to issue "decrees in Council", the parliament established that henceforth only a statute could change the content of a previously adopted statute.

All parliamentary restrictions on royal legislation were in fact discarded during the period of absolutism, when the king's decrees interfered with the most important state issues, and parliament itself often authorized the king to issue decrees that significantly changed the content of the parliamentary statute. The established practice was enshrined in the statute of 1539, which granted the king wide rights in issuing proclamations, decrees, when Parliament is not in session, "if it becomes necessary to act with all the speed required by circumstances."

A special place among the sources of medieval English law was also occupied by the norms of commercial and canon law. The conservative formalism of "common law", which does not contribute to the development of market relations, predetermined the direct borrowing by English law of a number of norms of commercial and canon law that are taking shape on an interstate basis. The emergence of a significant number of trading habits was also associated with the activities of English merchant ships. Their legal force was often sealed by royal statutes. The fact is that in the port cities of England, which became from the end of the XIII century. important centers of international trade, along with wholesale fairs for the sale of wool, cloth, metals, a whole network of special courts (court of the staple) developed. In the XIV century. wholesale trade courts were already operating in 614 English cities. Acting as defenders of safe international trade, which brings considerable income to the treasury, the English kings encouraged both the activities of merchants (this was reflected in Article 41 of the Magna Carta of 1215) and the activities of merchant courts. In 1353, for example, a special statute was adopted for wholesale trade and city merchant courts, which were to be created by local and overseas merchants under the chairmanship of the mayors of English cities. The decisions of these courts could be appealed to both the royal and clerical courts. The statute directly referred the commercial courts to the norms of commercial, and not "common law". In 1471, the English Parliament also decreed that all persons associated with fairs have the right to demand the court of "dusty feet."

6. Ownership

The right to feudal property, especially land property, determined in many respects the nature of the entire legal system of the country.

Its complexity was associated with a number of historical circumstances, in particular, with the preservation in the Middle Ages of a certain layer of free peasants - land owners, with the supreme ownership of the land by the English king, which in one way or another determined other forms of feudal "holding" of the land. In English law, movable and immovable property were distinguished, but the traditional division of things into real (real property) and personal property (personal property) was traditional. This division, which has developed historically, was associated with various forms of claims that protected real or personal property.

Feudal land law recognized, first of all, a special kind of land rights, deserving special protection, which were defended by real claims (real action), that is, claims, in the event of success of which the lost thing was returned to its owner. These claims were absolute and could be presented to any person.

Real claims were defended by ancestral property and only such rights to land that were in the nature of free holding, feudal possession from the king or from another lord. These included the rights to a feudal title. All other things were protected by personal claims, in which damages could be claimed.

The land initially occupied a special place in English medieval law due to the special, not so much economic, as the military-political interest of the king in the distribution of feudal fiefs for military and other services. Royal grants of land (bockland) were common in pre-Dorman England along with folkland ("people's land") or allod-type land ownership. In post-Norman English law, there was no concept of unlimited, unconditional ownership of land. Land rights were determined by two main concepts of tenancy - possession, holding and estate - the amount of ownership rights, legal interests (their duration, the possibility of alienation, etc.). Tenancy, in turn, was free or not free. Freehold (freehold) - this is the possession of land, received either on the terms of knightly service, or by right of personal service, as well as land ownership of a free peasant who paid a fixed amount of money to the lord and fell under his jurisdiction (socage).

Unfree holding, associated with the personal and land duties of the peasant in favor of the lord, eventually turned into the hereditary right of feudal lease and was called copyhold, since the terms of this lease were recorded in copies of the protocols of the manorial courts. Unfree holding was not at first defended in the royal courts. In the XV century. claims related to it began to be considered in the chancellor's court, and in the 16th century. under the influence of this court and in the courts of "common law" on the basis of the fiction that the copyholder had a "freeholder interest".

The concept of estate, which still exists in English and American land law, gives not only an idea of ​​the scope of ownership rights to real estate, but also of a set of technical means for transferring property. It covers the rights of a range of persons, living or not yet born, who are involved in the relationship of possession, use, disposal and control of property.

This concept has also evolved historically. The entire development of English medieval law is connected with the struggle of the feudal lords for the right to free disposal of land, burdened with numerous restrictions in connection with the duties of service. In 1290, under the statute of Quia Emptores, the lords received the right to sell land, provided that all the official duties of the former holder pass to the new holder. "churches. Such a transfer entailed the complete exclusion of land from feudal circulation, since neither the former lord nor the king, in the absence of the lord's heirs, could count on her return.

The subsequent expansion of the rights of feudal landowners led to the establishment of the most promising form of free holding in the feudal law of England - estate in fee simple, meaning the most complete possession in terms of the volume of rights, close to private property.

Its difference from private property was expressed only in the fact that the land, in the absence of heirs to the holding, did not become escheated, but passed to the former lord or his descendants, even the most distant ones. Real estate in fee tail, or "reserved lands" had a different legal status. These lands could only be inherited by the owner's blood relatives, usually the eldest son. The possibility of creating reserved rights to land with restrictions on the order of succession was provided for by the statute of immovables of 1285 in almost all cases of creation of family property protected by "common law". Creditors could not foreclose on this property. The creators of the statute thereby sought to ensure that the owner could not alienate or encumber his estate during his life to the detriment of the heirs. However, these prohibitions soon became circumvented. The property owner only had to go through a costly fictitious process to be able to treat the estate as "mere property".

Two other forms of free holding, in relation to the volume of ownership rights, were expressed in lifelong possession (estate for life) and in possession for a certain period (for years). Rights to real estate for life could be established not only for the life of the person owning the property, but also for the life of a third person, such as his wife. These land rights were the oldest known to "common law". The holder of land for life had fewer rights than the holder of fee simple, but his rights were wider than those of the holder for years, or the tenant of land. He had rights not only to the surface of the earth, but also as the owner (proprietor) in fee simple to its bowels. But like a tenant of real estate for a period of time, he was responsible for the damage done to the land.

A person who has established lifelong property on his land, real estate, does not cease to be the owner of the same property. He owns "waiting property" (remainder), which gives him the right to enter into the rights of the owner after the life of the property for another person ceases.

No matter how long the term of the lease of land was, medieval lawyers for centuries did not recognize it as real property (real property), i.e. recoverable with the help of a real claim right. The "law of justice" demanded in exceptional cases the return of illegally held leased land on the basis of the fiction that the leasehold ownership of land, although not in the literal sense of the word, the object of a real claim, can be restored by a special action of "acquisition by court" (action of ejection). The anomalous nature of leasehold rights was indicated by the equally anomalous concept of chattels real - movable, real property.

Medieval English law did not know the institution of a pledge of land in the form in which it was known to Roman (or modern) law, i.e. as a special type of real right, separate from the right of ownership, giving the creditor the opportunity to ensure the repayment of the debt at the expense of the value of the pledged property. Meanwhile, the problem of securing debt acquired its practical acuteness very early in England. Back in the XII century. the debtor could transfer land to the creditor as security for the debt on the basis of a fiduciary (based on trust) transaction, by virtue of which the creditor became the owner of the land, but was obliged, without violating trust, to return it to the debtor after he fulfilled his obligations. If they were not fulfilled on time, the creditor's ownership of the mortgaged land became indisputable. The creditor could not even count the income received from the land as debt repayment, although such a "dead pledge" was condemned by the church as "sinful".

In the XIII-XIV centuries. the rights of the pledgor received protection in the courts of "common law", which began to demand the return of the land to the debtor if the obligation was performed within the appointed time.

Chancery court in the XVI century. went further and established the principle that any pledged estate, land could be released from pledge on "fairness of redemption" within a grace period, before a court decision was made on the irrevocable transfer of ownership of the pledged thing to the creditor. The "prohibition" on the bailee to proceed with the foreclosure proceedings was contained in the same inquntion,

The institution of trust has become a purely English institution of property law. English lawyers, such as F. Maitland (1850-1906), speak of this institution with admiration, arguing that it is "the greatest and most definite achievement of the English in the field of jurisprudence."

The emergence of the institution of trust property is also associated with the peculiarities of feudal land tenure, which include limiting the circle of land heirs and limiting the sale of land to churches, monasteries, religious orders, especially the so-called mendicant orders (like the Order of St. Francis), which did not have the right to own land at all.

The essence of this institution was that one person, the settler of trust, transfers his property to another person, the trustee, so that the recipient manages the property, uses it as an owner in the interests of another person, the beneficiary (beneficiary - the original owner could also become one) or for other purposes, such as charitable ones. The practice of transferring land for designated use (use) originated as early as the 12th century. and developed rapidly during the period of the Crusades, when land was given on the basis of trust to relatives or friends until the sons came of age or until the previous owner returned.

The brotherhoods of mendicant monks, by transferring land to the laity to use it in their interests, not only circumvented legal and religious prohibitions, but also accumulated enormous wealth. Only at the end of the XIV century. trust property began to be defended in the chancellor's court, since it was a violation of trust, justice. Since that time, trust property has been called equitable ownership, in contrast to property protected by "common law" -- legal ownership.

The first fixation of the institution of trust property by law dates back to 1375. In the XV century. already significant tracts of land and real estate were transferred to trust ownership. Henry VIII, during the reform of the English church, undertook the confiscation of church lands, but was faced with the fact that, although the church and monasteries were large landowners, they were not formally the owners of their lands.

In order to seize church lands, the English Parliament passed in 1535 the so-called statute of uses, by which it was decided that in cases where one person owns property in the interests of another person, the owner of the land is actually recognized as the one in whose interests land is being used. This statute for some time slowed down the spread of the institution of trust property, but did not eliminate it. Courts with the help of a complex construction of "the right to use the use" began to successfully circumvent the statute. This "secondary use" became known as trust. trust property in the proper sense of the word, protected by the chancellor's court.

Trust property began to be widely revived by secular authorities after the Reformation, when church land ownership was significantly limited and church charity almost disappeared.

In 1601, under Queen Elizabeth, a statute of charitable uses was even adopted, on the basis of which the position of High Commissioner of a special parliamentary commission was introduced, whose duty was to control charitable gifts and suppress the abuse associated with them. The preamble to the statute listed the most common and recognized types of charitable activity. If, when establishing a trust, the purpose pursued by the founder fell into the list of purposes specified in the preamble, then the courts gave this trust the status of a charitable one.

The preamble lists the following types of charitable activities: helping the poor, infirm, elderly, sick and crippled soldiers and sailors; schools, colleges and universities; education and material support for orphans, support for correctional institutions; the ransom of prisoners of war and the payment of fines for convicts, etc. The vague and controversial criteria for these goals (for example, can a gift in favor of an elderly millionaire be recognized as charitable?) were detailed in judicial practice. The courts have developed a "public benefit" doctrine, justifying the rule that all trusts that do not provide any benefit to society are recognized as private, i.e. completely opposite to charities.

7. Law of obligations

In England, even in Anglo-Saxon times, contractual relations began to develop, but the concept of a contract (in connection with the widespread fief, vassal dependence.

These goals are still taken as the basis for determining a charitable trust, associated with tax and other benefits, requiring an agreement between two formally equal parties, at that time it did not work out. In Pravda Ine, one can find provisions on the responsibility of the seller for the quality of products, on the oath in a dispute between the plaintiff and the defendant, but they belonged more to the field of administrative rather than contractual relations.

In the light of the foregoing, it should be noted that the contract (contract) as a binding agreement between two or more parties that gives rise to them, rights and obligations, differs in English law from the concept of a simple agreement - argeement (for example, about a friendly service, etc.). Thus, under English law, every contract is an agreement, but not every agreement is a contract.

With the development of market relations in English law, the simplest forms began to take shape, from which the law of obligations subsequently developed: obligations from torts and contracts. It was a long evolutionary path of development of the "common law", complicated by the requirement of one form or another of the claim to protect the violated right.

One of the earliest forms of action defended in the "common law" courts was the action of debt. This form of claim is mentioned by Glenville (XII century), who considers it among the torts, as a claim for "unfair retention". The basis of the "debt" claim was the actual benefit received, not the obligation under the contract, so it could be applied in a limited number of cases.

Another early form of action was the action of account, the subject of which was a contractual obligation in a strictly defined form, on the basis of which one party had to perform certain actions in favor of the other.

This action, originally applied between the lord and the steward of the manor, was connected with the report of the person who was entrusted with other people's money and who was supposed to provide the owner with an account of their use. The claim began to be applied subsequently in commercial practice, in the activities of partnerships. Glenville considered this claim also in a series of delicts of "unfair retention", thereby justifying its use in the case of a loan, sale, lease, luggage, etc. The claim of account was soon fixed in the statutes of Edward 1 of 1267 and 1285.

Despite the seemingly wide scope of its application, the claim of account, however, did not significantly enrich English contract law, because the determining circumstance of its application was that the debtor eventually received a certain material benefit without corresponding payment from his side. The application of the claim "about the report" was also limited by the fact that the liability of the debtor was directly connected with the receipt of only monetary compensation.

The emergence of an agreement as a binding contract is associated with the recognition in the 13th century. in the "common law" courts of another claim - the claim "about the agreement" (action of covenant), containing a requirement for the debtor to fulfill the obligation established by the agreement of the parties, if it is sealed (deed under seal). This agreement acquired the right to claim protection only if the form of its conclusion "behind the seal" was not observed or if this form was defective. But here the decisive moment is not the unfair enrichment of one side, but the very fact of such an agreement, a certain action (deed), generating legal consequences. Thus, another step has been taken towards the recognition in the future of the fundamental principle of contract law on the "sanctity" of the contract, which has the force of law for the persons who have concluded it.

The development of market relations inevitably had to overthrow the extreme formalism of transactions, contracts, so the courts of "common law" began to provide protection to informal, verbal agreements. In the XV century. in English law, as a version of the claim "about the offense" (trespass), the purpose of which was to protect the person and property from encroachment, became the claim "for the protection of verbal agreements", which became possible due to the creation of a virtually new claim "in relation to this case" (action on the case).

These claims, which appeared under Edward I, were enshrined in the Statutes of Westminster when it became necessary to expand the list of claims in connection with their extreme Insufficiency.

The scope of this claim was not very wide, since at first it was required to prove guilt on the part of the obligated person. It is no coincidence that they were used, for example, to compensate for harm from slander.

In the 15th century, however, the requirement of fault fell away, and trespass on the case began to be applied in all cases where there was a loss or injury caused to the plaintiff, even if they were the result of simple negligence or lack of "due diligence" by the respondent.

The further development of contract law is associated with the emergence of a claim "about taking over" (action of assumpsit). "Take over" claims did not originally protect all informal agreements, but only those in which the damage was caused by the mere fact of performance of the contract by only one party, while no protection was given to contracts to be performed in the future. But the damage could be caused by one of the parties, when, for example, while waiting for the performance of the contract, she made some expenses. The courts of "common law" began to take into account this circumstance, expanding the scope of claims "for taking over" by shifting the center of gravity to the responsibility for the very fact of a breach of a promise, to the defense of the contract as such. This transformation of the claim "to assume" was recorded over time by the court in the case of "Stangborough v. Worker" in 1589, with which an important step in the development of contract law was associated. "A promise given in exchange for a promise may be cause of action," the decision read. The contract was thus severed from its tortious origin. From now on, a person who did not fulfill the obligation assumed for the promised or given equivalent was to be responsible for all losses incurred by the injured party.

Gradually, the "common law" courts developed the doctrine of "consideration" as a necessary condition for the recognition of any informal contract. By this time, the English courts already had considerable experience in applying some claims related to purely unilateral transactions of a semi-contractual nature (for example, donations), which took the form of a "document under seal" The next important step in the development of contract law was the emergence of the rule that every the contract either had to be concluded in the form of a written contract "behind the seal", or - provide for "counter satisfaction" (consideration), expressed in a certain benefit received by the debtor, or disadvantage (damage or liability) of the creditor associated with the contract.

Royal legislation also contributed to the development of English contract law, based on the practice of merchant courts, which were ahead of the "common law" courts in resolving a number of important legal issues related to the development of market relations.

Thus, the problem of non-payment of debt led to the very early practice of royal surety, when the king issued so-called open letters, in which he solicited creditors to give loans to his associates. Further searches for effective ways to collect the debt led in 1283 to the publication of a special statute "on merchants", according to which the creditor could lend goods, money, etc. in the presence of the mayor of the city, while the debt obligation was recorded in city protocols. If the debtor did not pay the debt, the mayor could, without any judicial decision, order the sale of the debtor's movables for the amount of the debt, or simply order the transfer of the corresponding part of the debtor's property to the creditor.

In 1285 the second statute "about merchants" was issued. The debtor, who overdue the payment of the debt, was arrested. He had to sell his property within three months and pay off the debt. If he did not do this, the sheriff was ordered by appropriate court order to "help out by selling" the property and repay the debt to the creditor.

Subsequently, a special law of the XVI century. a binding sanction was introduced for the proportional distribution of the property of an insolvent debtor among his creditors. If earlier it was applied only in merchant courts to merchants, then from the 16th century. applied to all debtors. In 1571, the law allowed creditors, without even resorting to the procedure for declaring insolvency (bankruptcy) of the debtor, to cancel his property orders "made with the intention of delaying payments, hindering creditors or deceiving them."

Judges, broadly interpreting this law, in a number of cases even ceased to require proof of "intent to deceive" in order to stop the debtor's unhindered ability to dispose of his property to the detriment of creditors. Following this, the statute of 1585 prohibited the voluntary, gratuitous transfer of land, committed to the detriment of its subsequent acquirers, including creditors. This statute was very strictly interpreted in the courts.

The trespass suit, as an alternative claim for felony (felony) charges, was also used to obtain compensation for the violent and direct infliction of damage to property, movables or person. In turn, trespass on the case provided for protection from harm in the event of non-violent, either not directly detected, or subsequently discovered harm. Moreover, the slightest interference with the possession of immovable property or movables became the basis for the application of the trespass "trespass" action, regardless of whether the owner suffered real damage as a result of such interference or not.

8. Criminal law

The norms of medieval criminal law were largely created by judicial practice. Criminal statutory law was, among its sources, nothing more than a reproduction (in full or in more or less modified form) of the corresponding "common law" norms. The complexity was also generated by the fact that crimes and civil offenses differed not so much in the nature of illegal actions as in the nature of the process of their consideration. One and the same act could turn out to be both a civil and a criminal offense, since the law, as mentioned above, allowed both one and the other form of claim and the corresponding process, civil (aimed at confirming or restoring certain rights) or criminal (having its own the object of punishing the offender for the act committed by him).

...

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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 office of the chancellor, and 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 took an oath 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.

Ownership.
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

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. it - 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.

Starting from the XV 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 free holding, distinguished two types of free holders:

^ directly from the king - baronies, which were granted to the "head holders", and 2) free knightly holdings from the "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 formally become 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 set 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 land. 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.

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