Pipes

The main sources of law in feudal England. Feudal law in England: "common law", "law of equity", statutory law

Sources and systems of law. In the initial period of the development of feudalism (until the second half of the 11th century), the main source of English law, as on the Continent, was custom. Already since the VI century. the practice of publishing custom-based legal collections, attributed to individual Anglo-Saxon kings and having the general name of “truths” - Ethelbert's Pravda (beginning of the 7th century), Ine's Pravda (VII century), Alfred's Pravda (IX century), etc. each of the subsequent legal collections was closely connected with the previous ones, the tradition of close continuity in the development of English law was strengthened, acquiring the character of its most important specific feature.

The conquest of England by the Norman Duke William (1066) marked the beginning of the formation of a single legal system throughout the country - the so-called. "common law" (soshshop law). The effect of his civil norms began in time to extend to all categories of the free population; as far as criminal law was concerned, villans were also subject to it. The formation of this system was facilitated by the fact that the jurisdiction of the king extended to the whole country, and its conductors were traveling judges, who clothed the principles and ideas of common law in specific normative and organizational and procedural forms. Common law was based on the traditions of ancient Anglo-Saxon law, the customs of Normandy, the decisions of the royal courts (judicial precedents), in some degree- on the norms of canon law. The question of the degree of influence of Roman law on the common law system remains controversial.

The activities of traveling judges first gained significant scope during the reign of Henry II Plantagenet (1154-1189). Bringing the defendant to trial was carried out on the basis of a special order of law (writ), which was issued by the royal office for an appropriate fee at the request of the injured party. This order was considered as a privilege and was issued only to those persons who, at the discretion of the king, were entitled to special protection, but did not find it in the seigneurial court. Over time, these orders began to clearly formulate the type of requirement; as a result, orders began to be classified according to the types of offenses. The ever-increasing number of orders led to the need to systematize them. In this regard, in the XIII century. registers of orders began to be published containing samples of claims drawn up taking into account all legal formalities. The observance of such formalized models has now become mandatory in the activities of the courts of common law; the practice of free justification by the parties of their mutual claims was completely stopped. The circle of claim formulas turned out to be closed - it was calculated only in 39 variants; the influx of new formulas that reflected the diversity of life's realities became almost impossible. As a result, there has been a tendency, and has begun to gain momentum, for the customary law system to lose the necessary dynamism, flexibility and capacity for transformation; there was a danger of its conservation and ossification.

In its main features, the system of "common law" was formed during the XII-XIII centuries. But by the fifteenth century it finally ceased to correspond to the level of socio-economic development of the country, which was entering the era of capitalism.

The negative aspects of this system were fully manifested - conservatism and strict formalism, accompanied by the expenditure of a lot of time and money. The hypertrophied attention to procedure, characteristic of the common law system, threatened to dissolve the very essence of law in the form, to lose the priority of the essence in favor of the form.

A direct response to the needs of social development was the formation during the XIV-XV centuries. new system of law - the so-called. "rights of justice" (law of equity). The right of justice was formed as a result of the judicial activities of the Lord Chancellor, who acted as the conductor of royal "mercy and justice." The formation of the apparatus under the Lord Chancellor as a special judicial structure took place at the beginning of the 14th century. The Lord Chancellor, acting initially in the name of the king, and from 1474 in his own name, was empowered to give protection to persons who considered themselves unprotected in the system of courts of customary law. In considering such cases on the merits, the Lord Chancellor, unlike the judges of the Westminster courts, was free to choose the procedure; jury participation was not mandatory. It was also fundamentally important that the Lord Chancellor was not bound by the current law: based on “reasons of justice”, he could operate with the norms of customary, canonical, Roman, and international law. Unlike the public and oral procedure of the Westminster Courts, the Lord Chancellor's proceedings were closed and written. A person found guilty was subject to immediate arrest; arrest was imposed on his property. There was a fundamental possibility of bringing an appeal against the decision of the chancellor's court to the House of Lords of Parliament, but by the 16th century. direct examination of court cases by the lords has already gone out of practice.

In the initial period of its existence, the law of justice did not come into conflict with common law, but only supplemented it. The balance of the two legal systems was based on the recognition of the priority of the common law. In general, the coexistence of the two legal systems brought a certain benefit to common law: its deadly formalism was somewhat weakened, it was given greater flexibility and dynamism. However, by the beginning of the XVII century. in the relationship between the two legal systems, conflict manifestations began to come to the fore. It was very significant that these contradictions from the sphere of legal abstractions began to increasingly move to the political plane, being one of the most striking expressions of the social tension of the pre-revolutionary era: the courts of common law objectively turned into the most consistent allies of parliament in its struggle against absolutism. In turn, the decision of James I to recognize the priority of the rules of justice over the rules of common law clearly revealed the absolutist claims of the Stuarts.

Despite the differences between the two named systems of law that operated in medieval England, there was something in common that united them. This common was judicial precedent - the deep source that fed both systems. During the period of absolutism (by the beginning of the 17th century), the rule finally developed, according to which all legal ideas and actions implemented in practical activities of a higher court in a particular case, must be taken into account and used when considering a similar case (in case of coincidence of factual circumstances) by all lower courts. Thus, decisions of the House of Lords were considered binding as a precedent for all other courts, decisions of the Westminster courts were considered binding on lower courts and recommendatory for subsequent judicial practice on behalf of the crown. Only the highest court could reject the precedent; in this case it lost its legal force. As a result, the principle gradually acquired the character of an axiom, according to which the only way for the existence of law can be only judicial practice; Outside of this practice there is no law itself. But at the same time, the judge does not create law: by his judicial decision, he only reveals the right that already existed before. Of course, it should be clarified that within the framework of each of the two legal systems there was its own precedent base: the precedents that arose in the practice of the common law courts were valid only for the courts of this system, as well as the decisions of the Lord Chancellor played the role of precedent only in the lower " courts of justice."

From the moment the institution of traveling judges arose, the materials of their activities began to be recorded first in the form of a brief record, and later in the form of a detailed protocol, the most important part of which was the motivation for the decision. From the beginning of the XIII century. these protocols began to be reduced to the so-called "Litigation Scrolls". For ease of use in courts, the materials of the most important court cases began to be systematized and published in the form of official Yearbooks. From the second half of the XVI century. instead of these general yearbooks, collections of court decisions, compiled according to the branch system, began to be published.

In addition to judicial precedents, royal legislation remained the most important source of law in feudal England at all stages of its development, starting from the time of William I the Conqueror. The legislative activity of Henry II and Edward I, who were the founders of the common law system, was distinguished by a significant scope. Initially, there was no uniformity in the naming of documents issued by the royal government. However, since the era of the estate-representative monarchy, the term “statute” has become widespread, denoting an act adopted by parliament and approved by the king. The statute had the highest legal force, and its legality could not be discussed in court. In 1327, by a decision of the parliament, it was established that only another statute, adopted in compliance with a similar procedure, can change the content of the current statute. Over time, statutory law (it meant all the legal norms set forth in the acts of parliament and the crown, starting with the Magna Carta of 1215) began to be regarded as one of the most important sources of English law.

During the period of absolutism, the kings of the Tudor dynasty received an almost unlimited opportunity to implement legislation on all the most important state issues. In violation of this resolution of 1327, the statute of 1539 granted the king the right, during the period when Parliament was not in session, to issue so-called proclamations that could cancel the norms of earlier statutes.

The involvement of England in the broad European trade was one of the essential reasons for the penetration of the norms of international commercial law into its legal system. Already in the XIII-XIV centuries. a whole network of merchant courts operated on the territory of the country, which in their practical activities often deviated from the norms of common law. The royal power actively patronized commercial entrepreneurship, took property and personal interests of merchants under its protection. The decisions of the merchant courts could be appealed both to the royal court and to the court of the Lord Chancellor.

Throughout the Middle Ages, canon law continued to retain its role as sources of law and norms. The struggle of the royal power for the reduction of the sphere of activity of church courts went on with varying success. After the reformation of the church, carried out in the 16th century, the operation of the norms of canon law was allowed to the extent that they did not contradict the laws of the country and the prerogatives of the crown. In some matters (concerning, for example, statutory and probate inheritances), the rules of canon law were allowed to be interpreted by the common law courts.

Finally, it is customary to classify the works of the most authoritative lawyers as sources of English law. The first legal treatise (“On the laws and customs of England” - 1189) was written by R. Glanville, justiciar of King Henry II. This work was an extensive commentary on the orders of the royal courts that formed the common law system. Published in 1260, the treatise of the same name by G. Bracton, one of the highest judges of the Court of King's Bench, was a systematized set of norms of "customary law" drawn from the "Litigation Scrolls"; several hundred (at least 500) passages from Justinian's Digest were also used in the treatise. By the 15th century refers to the emergence of a number of studies on the most important and complex issues of law. An example is the treatise of a prominent politician and jurist, Lord Chancellor D. Fortescue “On the Laudable Laws of England”. At the beginning of the XVII century. The “Institutions of the Laws of England” compiled by the Chief Judge of the Court of General Litigation E. Cock (composed of 4 books), which touched on a wide range of problems of civil, criminal and procedural law, were widely known.

Thus, the main feature of the judicial and legal system of medieval England was its dualism, based on the parallel functioning of the institutions of "common law" and "justice". The strengthened royal power not only did not eliminate this dualism, but sanctioned it by law. A powerful factor that maintained the strength of this tradition was the rule of judicial precedent, which obligated the courts to follow previous decisions no less strictly than to comply with current legislation.

The right to land ownership. The specificity of this industry as a whole, as well as its individual institutions, was determined by the fundamental principle according to which only the king was recognized as the supreme owner of land in the state. This tradition dates back to the time of William the Conqueror, who in 1086 in the city of Salisbury for the first time took the oath of all the country's fiefs. Therefore, in the law of the post-Norman period, there was no concept of unlimited, unconditional ownership of land when it concerned royal subjects.

One of the fundamental concepts of land rights was the concept of tenancy. In turn, ownership could be free (freehold) and not free (copyhold). If the owner of a freehold had the right to protection of his holding in the courts of common law, then a non-free holding did not have such protection for a long time. Only since the 15th century lawsuits related to copyhold began to be accepted for consideration, and initially only in the chancellor's court.

Medieval English law knew several options for free holdings, which differed from each other in the amount of ownership rights and legal interests of a particular holder. The most complete in scope and therefore closest to private property was holding in the form of “fee simple”, freely transferable by inheritance and protected in court as “real property”. The Third Statute of Westminster, 1290, for the first time allowed freemen to sell their holdings (or parts thereof), with the indispensable condition, however, that all the duties that lay on the hold would pass in full to the buyer. At the same time, the ban on the sale or donation of secular fiefs in favor of the clergy was confirmed. Free holdings in the form of leases had the least judicial protection, especially those that were limited to a certain period.

Since the Middle Ages, English property law has had a specific institution that had no analogues in the countries of continental Europe - the so-called institution of trust property, which eventually received the name of a trust. The essence of this institution was that one person (the founder of the trust - settlor) transferred his property or part of it to another person (trustee - trustee), instructing him to manage this property in his own interests or in the interests of third parties. The trustee at the same time acted to these third parties as the owner of the property, but was responsible for managing it to the settlor of the trust. The emergence of the trust is explained by the peculiarities of English feudal landownership, which made it difficult to freely dispose of landed property. With the help of this institution, the real owner could avoid material hardships associated, for example, with taxation, by submitting to state bodies underestimated information about his actual property status. Although the practice of transferring land for designated use has been known since the 12th century. (especially significant development she received in the period crusades), the legal protection of the institution of trust property began to be carried out in the chancellor's court only from the end of the 14th century. Around the same time, the first attempts to regulate the trust in the legislative order.

The institute of trust property was especially widely used by religious congregations: by transferring their lands to the laity, they bypassed the legal and religious restrictions on the accumulation of wealth. When the royal power embarked on the path of secularization during the Reformation, it faced great difficulties: significant tracts of church lands were in the hands of trustees, to whom the government's confiscation measures were not formally extended. A specially adopted statute of 1535 temporarily resolved this conflict in favor of the crown: it was established that the owner of a thing is the one in whose interests it is managed. On this basis, church property was confiscated from all persons who were entrusted with managing it. After the completion of the Reformation, the institution of the trust was actively used by the secular authorities, when social problems turned out to be in their sphere of attention, requiring, in particular, the intensification of charitable activities.

Obligation law. Obligations arose from contracts and harm. Contractual relations developed in connection with the general progress of commodity production and the strengthening of market ties. The contracts were divided into formal, i.e., concluded in accordance with strictly established procedure, and informal or simple. Originally, the common law granted protection only to formal contracts, and therefore protection for informal contracts could only be found in the court of the Lord Chancellor. However, under the influence of the norms of the law of justice from the end of the 15th century. common law courts also began to provide protection for informal contracts in the form of verbal agreements.

Obligations from infliction of harm initially arose only in the case when one of the parties carried out violent actions against the other. In the XV century. also began to receive legal protection and the interests of those persons who suffered damage as a result of non-violent actions of the partner (for example, in the form of inaction), as well as non-performance or improper performance of the contract.

Specific regulation received in the middle of the XIV century. contract of personal employment: when, as a result of the plague of 1348-1349. the number of workers was sharply reduced and employers began to suffer losses, a number of statutes obliged employees to agree to pay that existed before the epidemic. Refusal to hire under these conditions entailed criminal liability (fine, imprisonment, branding). It is no coincidence that the statutes of the mid-14th century. were a kind of prelude to the "bloody legislation" of the Tudor and Stuart era.

In the conditions of the rapid development of capitalism, England was the birthplace of antimonopoly legislation (the Statute of Monopolies of 1624), as well as patent law.

Marriage and family and inheritance law. The area of marriage and family relations was regulated mainly by the norms of canon law, enshrined in law. Some spheres of property relations of spouses could be regulated by the norms of common law. The legal capacity of a married woman was sharply limited: she could not conclude contracts, speak in court in defense of her rights. The movable property of a woman after marriage passed to her husband, and real estate was under his control. Divorce, once permitted by the old Anglo-Saxon law, was not recognized by canon law; allowed, however, the separation of the spouses under the conditions of "excommunication from the table and the bed." Probably, in exceptional cases, when it came to high-ranking persons, the decision on the issue of divorce could be submitted to the discretion of the Pope (as mentioned earlier, it was the divorce cases of Henry VIII that were the immediate reason for the beginning of the reform of the English Church). Illegitimate children were not recognized as legitimate: the church considered them born in sin. However, not only moral and ethical considerations played a role here, but purely material calculations, since the legalization of illegitimate children would expand the circle of potential heirs. The Merton Statute of 1235 forbade the legalization of illegitimate children even by the fact of their parents' subsequent marriage.

Movable property was divided, as a rule, into three parts: one part was inherited by the wife, another by the children, and in relation to the last third, the testator had testamentary freedom.

Criminal law. The problems of the general part of criminal law throughout the entire period of the Middle Ages remained insufficiently developed. Starting from the XII century. under the influence of Roman and canon law, the presence of guilt began to be recognized as the basis for the emergence of criminal liability, although the remnants of objective responsibility persisted for a long time. Insanity was treated as an indisputable basis for exemption from criminal liability. Necessary defense in conditions of direct threat to life was also among the circumstances excluding criminal liability. The institution of complicity was developed taking into account the specific role that a given person played in a crime; at the same time, the severity of guilt was largely determined by whether the accomplice acted before or after the commission of the crime.

A specific feature of the special part of the medieval criminal law of England was a fairly clear classification of criminal acts in terms of their severity. By the XIV century. formed the traditional division of crimes into three main groups: treason (treason), felony (felony) and misdemeanor (misdemeanour).

The first link was treason, which meant the most serious state crimes. In turn, treason was divided into "great" (high treason) and "small" (petty treason). The Great Treason was interpreted by common law as a violation of the duty of loyalty to the king. The royal power effectively used the extreme vagueness of this concept in the fight against its opponents - with representatives of both secular and spiritual nobility. When persons of the clergy were accused of great treason, they lost their privilege of jurisdiction in church courts, where they would be guaranteed from the death penalty. The property of all persons convicted of great treason was subject to confiscation in favor of the treasury.

In 1351, a statute was adopted containing a list of seven forms of criminal acts that could qualify as great treason (these included waging war against the king, going over to the king's enemies in his kingdom, encroaching on the life, property and honor of the king and members his family, the killing of his closest associates - the chancellor, chief treasurer, royal judge, etc.). Over time, this list was supplemented by new crimes against state security: incitement to sedition, illegal gatherings for the purpose of causing disorder, conspiracies with illegal intentions. Since 1416, an encroachment on the royal monetary regalia in the form of counterfeiting began to be qualified as a great treason. Starting from the XV century. in criminal law practice, the doctrine of "implied treason" was applied.

The concept of petty treason was applied to criminal acts committed by a lower person in relation to a higher one (examples are the killing by a servant of his master or his wife, a wife by a husband, a vassal by a lord, a clergyman by a higher prelate).

The second link in the above three-link system was the felony - a serious criminal offense, which initially, at the end of the 12th century, meant a violation of vassal duties; later this concept was extended to such acts as murder, arson, robbery, rape, theft. The felony was brought before the royal courts as a crime that violated the "royal peace". The presence of "malicious intent" was considered a qualifying sign of a felony (and even more so - treason). The punishment for a felony was the death penalty with confiscation of property.

In third place was a misdemeanor - a criminally punishable act that grew out of previous offenses that were once punished as civil torts. The inclusion in this group of increasingly serious crimes (such as forgery, fraud, making false documents) gradually blurred the line between misdemeanor and felony, as a result of which the tendency of increasing repression prevailed in criminal law policy. However, there were rare cases of deviation from this general trend: for example, petty theft (with a value of stolen less than 12 pence) in the time of Edward III (mid-14th century) began to qualify not as a felony, but as a misdemeanor, and was no longer punishable by death execution, but imprisonment.

The system of punishment throughout the Middle Ages was characterized by extreme cruelty. The most common type of punishment was the death penalty: in the XVII century. she relied on more than 50 types of crimes (this included all types of treason and most felonies). In order to make the most powerful impression on eyewitnesses, the death penalty was carried out, as a rule, publicly and in the most sophisticated forms (wheeling, quartering, tearing to pieces, peeling off the skin, tearing out the insides, etc.). In 1401, Parliament decreed that the special punishment for heretics was to be burned at the stake. Only two monarchs - Henry VIII and his daughter Elizabeth I - destroyed a total of over 150 thousand heretics. Self-mutilating punishments, imprisonment, fines and confiscation of property were also used. The principle of commensurability of the severity of punishment with the severity of the crime to English criminal law feudal period was unknown.

During the period of primitive accumulation of capital, when a huge mass of working people were left without means of subsistence, the government resorted to the so-called. "bloody legislation" directed against vagrancy and begging. Already under Henry VII, 72,000 "large and small thieves," as they called vagabonds, were hanged. Laws 1530 and 1536 only old and incapable beggars were allowed to collect alms. A law passed during the reign of Edward VI (1547-1553) gave vagabonds one month to get a job; after that, they could be given into virtual slavery to anyone who denounced them to the authorities. The owner could force such slaves to work, sell them, bequeath them by inheritance, or lease them out. For unauthorized leaving for the first time, a slave was branded; escaping for the third time was punishable by death. In the reign of Elizabeth I, a statute was issued in 1572, according to which all beggars over 14 years old, if they were not crippled and did not have permission to collect alms, were subjected to the first cut and branding. Upon repeated detention, these punishments were repeatedly toughened (cutting off the ears, tongue, tearing out the nostrils, cutting off the limbs); in the case of the third offense the death penalty was applied in the most severe form.

procedural law. Both civil and criminal proceedings in the system of common law courts were predominantly adversarial. The initiative to initiate a case and move it through the stages of the process belonged to the parties. In the XII century. ordeals, judicial duels, oath and swearing were still widely used. In common law courts, the defendant was not required to prove his innocence: the burden of proof was on the accuser. However, the accused did not receive a copy of the indictment prior to trial; he could not demand a confrontation with witnesses; Witnesses he wanted were interrogated without being sworn in.

A characteristic feature of the English judicial process was that the stage of preliminary investigation, although separated from the court earlier than in continental Europe, remained underdeveloped. In the courts of the Chancellor and in the ecclesiastical courts, investigative actions were carried out directly by the judge. In the courts of common law, the investigation was carried out either by the prosecutor (with the help of specialists was allowed), or by the justice of the peace.

The institution of the jury began to take shape already in the 11th century, but received procedural formalization according to the assizes of Henry II and since then has become one of the most characteristic features of English legal proceedings within the framework of "common law". Originally, the consent of the accused was required for a jury trial; there were even ways of forcing him to such consent. Jurors have tried both civil and criminal cases. The jury, starting from the turn of the XIII-XIV centuries, could act in two varieties - a grand jury and a small jury. The Grand Jury (of 23 people) acted at an intermediate stage between the preliminary and judicial investigation: it decided the question of bringing to trial. The small jury included 12 jurors, selected according to the property qualification (20-40 shillings). It considered the case on the merits and issued a final verdict; at the same time, the verdict was recognized as valid only with the unanimity of the jury.

As for the formal theory of evidence, characteristic of continental procedural law, it was not very widespread in England: the jury was mainly guided by its own conviction. In general, the inquisitorial nature of the process was characteristic mainly only of the high political tribunals of the absolutist era (primarily, the so-called Star Chamber).

As a rule, appeals against court decisions were not allowed: revision of sentences and decisions made on the basis of a jury verdict was fundamentally impossible. Only the Court of Queen's Bench had the right to intervene in the judicial procedure, and only in the event of an inaccuracy in the preparation of the protocol (the so-called "mistake claim"). Only in the XVII century. the litigant has the right to apply for a new hearing.

Introduction

When choosing a topic term paper in the subject "History
state and law of foreign countries” I focused on the topic FEUDAL LAW OF ENGLAND.

English law was not updated either on the basis of Roman law or by virtue of codification, which is typical of French law and other legal systems of the Romano-Germanic legal family. Communication with the European continent had only a minor impact on him. English lawyers emphasize the historical continuity of their law and are proud of this circumstance, they consider it as proof of the great wisdom of the common law, its ability to adapt to changing conditions, its value.

There are four main periods in the history of English law. The first period preceded the Norman conquest of 1066; the second - from 1066 to the establishment of the Tudor dynasty (1485) - the period of development of common law. The third period (1485-1832) is the heyday of common law, but it was forced to exist with a different legal system, which found its expression in the "norms of justice". The fourth period (from 1832 to the present day) - when common law met with an increased development of legislation and had to adapt to a society where the importance of state administration is constantly increasing.

1066 is a date that is fundamental in the history of English law. At this time, England was conquered by the Normans. Norman Conquest - brought to England, along with foreign occupation, the strongest centralized power. With the Norman conquest, the communal-tribal era ended: feudalism was established in England.

The purpose of my work is, by studying and comparing various sources, to get a clear picture of the initial stage development of legal relations in this country, to identify the features and main features of feudal law in England.

Sources of feudal law in England.

In the early feudal period before the Norman Conquest in England, law was formed on the basis of legal practices. Already since the VI century. The practice of publishing custom-based legal collections attributed to individual Anglo-Saxon kings and having the general name of “truths” became widespread - Ethelbert's Pravda (early 7th century), Ine's Pravda (late 7th century), Alfred's Pravda (IX century), Knut's Laws (XI century ). In their content, they are in many ways similar to other barbaric truths.

After the Norman conquest, the old Anglo-Saxon customs continued to operate. William the Conqueror and his successors repeatedly confirmed that they would abide by the good old laws and customs. In 1265, it was recognized that the ancient customs were those that existed before 1189. These customs were local, territorial in nature.

The development of law was also affected by such a source as regulations, which constituted the royal legislation, which gradually increased its role, because it was more mobile and flexible. It was with the help of normative acts that the process of feudalization of society received legal consolidation. one

In some kingdoms, collections of customs were published, which also included new rules of law - the result of legislative state power. After the Norman Conquest, the old Anglo-Saxon customs continued to operate.

An important role in the judicial system of England was played by the institution of traveling judges. Traveling royal judges were guided not only by the legislative acts of the kings, but also by local customs, the practice of local courts. In the process of generalizing judicial practice, they developed general rules of law that guided the royal judges when considering. So gradually, from the practice of royal courts, uniform rules of law were developed that were applied throughout the country, the so-called " common law ».

Starting from the 13th century, minutes were drawn up in the royal courts, reflecting the course of the court session and the decisions of the court. These protocols were called scrolls of litigation". From the middle of the 13th century to the middle of the 16th century, reports on the most important court cases were published in "yearbooks", which then replaced the collections of court reports. At this time, the basic principle of "common law" is born: the decision of a higher court, recorded in the "rolls of litigation", is binding when considering a similar case by the same court or a lower court. The principle was later called judicial precedent . 2

1. State and law of the ancient world and the Middle Ages. V.V. Kuchma 2001

2. General history of state and law. Z.M. Chernilovsky 1999

Judicial precedent is a stable jurisprudence. But sometimes it can

be a single decision of a higher court (including for itself) in a similar case.

The norms of common law were based on the traditions of ancient Anglo-Saxon law, the customs of Normandy, the decisions of the royal courts, and to a certain extent - on the norms of canon law. Common law 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 abuses of royal officials. In addition, he 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". 3

The traveling 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 of law(writ), as a rule, at the request of the injured party, which contained a requirement for the offender or the sheriff to fulfill it and eliminate the violated rights of the complainant. These orders were considered as a privilege and were issued only to those persons who, at the discretion of the king, were entitled to special protection, but did not find it in the seigneurial court. Over time, these orders began to clearly formulate the type of requirement; as a result, orders began to be classified according to the types of offenses. 4

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.

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. The observance of such formalized models has now become mandatory in the activities of the courts of common law; the practice of free justification by the parties of their mutual claims was completely stopped.

3. History of the state and law of foreign countries, part 1. O.A. Zhidkov, N.A. Krasheninnikova 2002.

The circle of claim formulas turned out to be closed - it consisted of only 39 variants, and the influx of new formulas became almost impossible. As a result, there was a tendency for the system of customary law to lose the necessary dynamism, flexibility, and ability to transform.

In its main features, the system of "common law" was formed during the XII-XIII centuries. But by the fifteenth century It finally ceased to correspond to the level of socio-economic development of the country, which was entering the era of capitalism. The negative aspects of this system were fully manifested - conservatism and strict formalism, accompanied by the expenditure of a lot of time and money.

The answer to the needs of social development was the formation in England in the XIV century. "court of justice" and the subsequent formation of another legal system, "rights of justice".

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.

The formation of the apparatus under the Lord Chancellor as a special judicial structure took place at the beginning of the 14th century. The Lord Chancellor, acting initially on behalf of the king, and from 1474 on his own behalf, was empowered to provide protection to persons who considered themselves unprotected in the system of courts of customary law.

The principles of equity are as follows:

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.

The "law of justice" was created not to replace the "common law", but to make it more effective by moving away from the old formal rules, to create means of protecting violated rights and interests in those areas of social relations that were not affected by the "common law" . five

5. General history of state and law. Under the editorship of K.I. Batyr 1999

The source of English feudal law is also statutes- Legislative acts of the central government. Initially, acts of royal power were called differently: statutes, assizes, provisions, charters. With the formalization of the legislative powers of parliament, statutes also began to mean legislative acts adopted by the king and parliament. The statute had the highest legal force, and its legality could not be discussed in court. In 1327, by a decision of the parliament, it was established that only another statute, adopted in compliance with a similar procedure, can change the content of the current statute. Over time, statutory law came to be regarded as one of the most important sources of English law. During the period of absolutism, the kings of the Tudor dynasty received an almost unlimited opportunity to carry out the publication of the so-called proclamations which could override the norms of earlier statutes.

Acts passed by parliament and approved by the king were considered the highest law of the country, capable of changing and supplementing the "common law", but the courts had the right to interpret these laws. The totality of legislative acts of the king and acts adopted jointly by the king and parliament was called "statutory law".

The involvement of England in the broad European trade was one of the significant reasons for the penetration of norms into its legal system. international trade law. Already in the XIII-XIV centuries. a whole network of merchant courts operated on the territory of the country, which in their practical activities often deviated from the norms of common law. The royal power actively patronized commercial entrepreneurship, took property and personal interests of merchants under its protection. Decisions of the merchant courts could be appealed both to the royal court and to the court of the Lord Chancellor.

The source of feudal law in England was also canon law. Its norms were applied in resolving disputes in matters relating to marriage, divorce, wills and the administration of the property of persons who did not leave a will. 6

The struggle of the royal power for the preservation of the sphere of activity of the church courts went on with varying success. After the reformation of the church, carried out in the 16th century, the operation of the norms of canon law was allowed to the extent that they did not contradict the laws of the country and the prerogatives of the crown. On some issues, interpretation of the rules of canon law by common law courts was allowed.

6. State and law of the ancient world and the Middle Ages. V.V. Kuchma 2001

Finally, it is customary to rank among the sources of English law and works of the most respected lawyers. The first legal treatise appeared in England in the 12th century. It was written under Henry II, by his justiciar R. Glenville. This work was an extensive commentary on the orders of the royal courts that formed the common law system. A more detailed exposition of the "common law" norms belongs to the pen of Bracton (XIII century), one of the highest judges of the "Court of the King's Bench", who, following Glanville, tried to systematize and comment on the "common law" norms drawn by him from the "Litigation Scrolls". It is noteworthy that Bracton used at least 500 passages from Justinian's Digest, without reference to them. The appearance of a number of studies devoted to the most important and complex issues of law belongs to the 15th century. An example is the treatise of a prominent politician and jurist, Lord Chancellor D. Fortecue “On the laudable laws of England”. At the beginning of the XVII century. The “Institutions of the Laws of England” compiled by the Chief Judge of the Court of General Claims E. Cock (composed of 4 books), which touched on a wide range of problems of civil, criminal and procedural law, were widely known. Thus, the main feature of the judicial system of medieval England was its dualism based on the parallel functioning of the institutions of "common law" and "law of justice". The strengthened royal power sanctioned it by law. A powerful factor that maintained the strength of this tradition was the rule of judicial precedent, which obligated the courts to follow previous decisions no less strictly than to comply with current legislation. 7

7. General history of state and law. Omelchenko O.A. 2005

Ownership

The right to feudal property, especially land property, determined in many respects the nature of the entire legal system of the country. It was hierarchical, conditional and limited, based on the granting of feudal holdings by the lords to their vassals, with the same powers of lords and vassals.

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. 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.)

"Common law" regulated only issues related to feudal, i.e. free holding of land. There were free holdings directly from the king - barony, which were granted to barons, lords, who were called "head holders", and free "knightly" holdings from these "head holders". But regardless of the rank of the holder, all free holders of land were considered vassals of the king as the supreme owner of the land.

In the "common law", from the point of view of the powers of the owner, three types of feudal holdings have developed:

1. Holding a "free-simple", which could be freely owned and disposed of. Only in the absence of direct and lateral heirs, it was returned to the seigneur as wasted property.

2. Conditional land holdings - land grants (donations), which, in the absence of offspring from the person who received the land, returned to the donor or his heirs. This form of ownership was secured by the Second Statute of Westminster in 1285. 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".

3. Reserve holdings - holdings that could not be disposed of and which were inherited only by a descendant relative, usually the eldest son (principle of majorate). 8

8. History of the state and law of foreign countries. Ed. P.N. Galanzy 1980

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 by means of a real claim

In the XII-XIII centuries. in English law, an original legal institution arose, unknown to other legal systems, which later became known as trust property (trust). The emergence of this institution is associated with the limitation of the disposal of land established by "common law". A particularly large role in its emergence belongs to the orders of mendicant monks who took a vow of poverty, which deprived them of the right to acquire real estate, and the church, which was forbidden to acquire land under the Statute of the Dead Hand. To circumvent all these restrictions, the church and monasteries began to transfer land to secular persons, so that they manage them in the interests of their wives or children. This practice is known as "provision of land for use". nine

The essence of this institution was that one person - the founder of a trust property (settler of trust) transfers his property to another person - a trustee (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, for example, 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.

9. History of the state and law of foreign countries. Ed. P.N. Galanza 1980

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. In the 16th century, in order to confiscate church and monastery lands, Henry VIII issued a special statute (1535), according to which it was established that the owner of property given into the possession of any person is the person in whose interests this property is managed. Thus, the church was recognized as the owner of those lands that it provided "for use" to secular persons, and then these were confiscated.
In order to seize church lands, the English Parliament adopted 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 revived by the secular authorities after the Reformation, when church land ownership was limited and church charity almost disappeared.

The legal status of the peasant allotment. The land holdings of the feudal lords for processing were given over to the serfs, which by the 13th century received the common name of villans. Willan could not have any property that was not the property of the lord. They were under the authority of their masters and could not leave their possessions without their consent. For the right to use the land allotment, the villans had to bear various duties (corvée, natural and monetary duties).

The holder of the "full villan" land plot there could also be a free person, but his duties, in contrast to the “full villans”, were real, and not personal, and if a free person left this site, he was exempted from these duties.

The duties of "incomplete villans" for the possession of land were precisely fixed, and the lords could not drive them off the land or increase their duties at their own discretion.

The process of freeing the peasants from personal dependence and replacing natural duties with monetary rent, which began in the 14th century, led to the emergence of a new form of peasant land ownership - copyhold. Kopihold is peasant land ownership on the basis of the custom of a feudal estate (manor), provided to the peasant by issuing him an extract from the protocol of the manorial court (copy), confirming his right to own the plot. Copyholders were personally free, but had to bear duties in favor of the owner of the land, established by the customs of the manor. By its legal nature, copyhold was in the nature of a hereditary lease.

Initially, civil law disputes that arose between copyholders and lords were considered only by the chancellor's court on the basis of "equity". Since the 16th century, the "common law" courts have followed suit, but they dealt with these disputes in accordance with the customs of this manor. The "common law" established the principle that the owner of the land has no right to unlawfully deprive the copyholder of the land plot or arbitrarily increase his duties.

Despite the dominance of feudal land ownership in England, as in other countries of Western Europe, communal land tenure with forced crop rotation remained, with the preservation of undivided common lands (meadows, forests, wastelands, waterlands). After haymaking or harvesting, both peasant plots and lands that were in the direct possession of the feudal lords turned into communal pastures. The peasants, both personally dependent and personally free, carried certain duties in favor of the feudal owner for the right to use this land.

Beginning in the thirteenth century, feudal proprietors began to expand their immediate possessions by enclosing communal lands and depriving the peasants of the right to use these lands. The Statute of Merton of 1236 was the first piece of legislation that gave them the right, under the pretense of "improvement," to enclose common lands, over the objections of the peasants. The Second Statute of Westminster, 1285, not only confirmed this provision, but expanded it and provided for punishment for those who destroyed the hedges or ditches built by the lord, and those responsible for this were obliged to restore the destroyed and compensate for the damage caused to the feudal lord.

Obligation law.

In England, even in Anglo-Saxon times, contractual relations began to develop, but the concept of a contract at that time did not develop.
One can only find references to the seller's responsibility for product quality, to the oath in a dispute between the plaintiff and the defendant, but they belonged more to the field of administrative rather than contractual relations.
An agreement (contract) as a binding agreement between two or more parties, giving rise to their rights and obligations, differs in English law from the concept of a simple agreement - argeement (for example, on a friendly service, etc.). Under English law, every contract is an agreement, but not every agreement is a contract. 10
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.

"Common" law" recognized only a strictly limited range of obligations arising from contracts. These contracts were characterized by a strict formality: they were concluded in a certain form and were subject to registration in court by entering them into the scrolls of litigation. In the event of the execution of the contract, a complex and lengthy judicial procedure was envisaged to recover the damage caused.

For a long time, "common law" ignored obligations from simple informal contracts, because an agreement that did not fit into a certain type of contract was not recognized as a contract.

One of the earliest forms of action defended in the "common law" courts was the action of debt. It was based on a benefit actually received, not a contractual obligation, 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, and was connected with the report of the person who was entrusted with other people's money and who was supposed to present to the owner an account of their use. The claim began to be applied subsequently in commercial practice, in the activities of partnerships.

10. History of the state and law of foreign countries. Ed. P.N. Galanza 1980

Despite its broad scope, the "report" claim, however, did not significantly enrich English contract law, because the defining circumstance of its application was that the debtor ended up receiving some pecuniary benefit without corresponding payment on his part. 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), which contained 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 that gives rise to 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.

Soon the courts of "common law" began to provide protection and informal, verbal agreements. In the XV century. in English law, as a variation of the claim "about the offense" (trespass), the purpose of which was to protect the person and property from encroachment, was 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 appeared under Edward I and were enshrined in the Statutes of Westminster when it became necessary to expand the list of claim formulas due to 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. But they were used, for example, to compensate for harm from slander.

In the 15th century, however, the requirement of guilt 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.

From the end of the 13th century, royal orders began to provide the right to claim in case of harm caused to a person or his movable or immovable property. Using these orders, persons affected by default under the contract began to apply to the courts of "common law" with claims for damages caused by default, on the basis that in this case damage was caused to their person or property. This required that the parties, when entering into a contract, conclude among themselves a special agreement on the use of the obligation - the so-called agreement "on acceptance" (action of assumpsit).

"Take over" claims did not initially 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 protection of the contract as such. This transformation of the claim "to assume" was recorded 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. eleven

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 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 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 open letters in which he solicited creditors to give loans to his associates.

11. History of the state and law of foreign countries. Ed. P.N. Galanza 1980

12. History of the state and law of foreign countries, part 1. O.A. Zhidkov, N.A. Krasheninnikova 2002.

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 evidence 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 immovables 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.

Marriage and family law.

The feudal marriage and family law of England was largely determined by the interests of protecting and defending feudal landownership. It was strongly influenced by canon law. A number of the most important norms of canon law, for example, the church form of marriage, the prohibition of bigamy, etc., were directly enshrined in law. For example, the statute of 1606 classified bigamy as a felony, with all the ensuing consequences.

The English medieval family was patriarchal in nature. The legal status of a married woman was extremely limited. Her movable property passed to her husband, with regard to real estate, his management was established. A married woman could not independently conclude an agreement, speak in court in defense of her rights.

Married women in peasant, artisan and merchant families enjoyed relatively greater legal capacity, where the relevant norms of customary law were in force. They could manage their property, conclude contracts, engage in trade.

Divorce was recognized by Anglo-Saxon customary law. A woman, leaving her husband's family in the event of a divorce or in the event of her husband's death, received her share of family property (movable property, livestock, money). Canon law, as you know, did not allow divorce. Separate living of spouses, "excommunication from the table and bed" was allowed only under certain circumstances. In exceptional cases, divorce could probably be authorized by the Pope and later by the English Parliament. The refusal of the pope to recognize the divorce to Henry VIII became, as you know, the immediate reason for the complete break of the English kings with the Roman Curia and the establishment of their supremacy over the English Church.

Illegitimate children were not recognized, given the attitude towards them not only catholic church(as born in sin), but also barons. Attempts by the church to allow the legalization of illegitimate children by the subsequent marriage of their parents met with stubborn resistance from the latter. This was due to the same protection of feudal land ownership, since the legalization of children expanded the circle of potential heirs. The Statute of Merton of 1235 explicitly forbade the legalization of illegitimate children.

The transfer of real estate in favor of the heirs was originally carried out only in the form of inheritance by law and with the obligatory observance of the principle of majorat (this principle became undividedly dominant after it was confirmed by the Second Statute of Westminster in 1285). Since the XII century, a rule has been established that they are inherited with the obligation of the heirs to pay the inheritance duty - relief. 13 13. History of the state and law of foreign countries. Ed. P.N. Galanza 1980 Traditional common law was not aware of testamentary disposition of landed property. It was introduced only together with the institution of trust property (trust), which over time began to determine the entire procedure for receiving inheritance by minor heirs, both by law and by will. In 1540, for the first time, it was allowed, on the basis of a will, to freely dispose of real estate, if it was not "reserved", but the heirs were obliged to provide material support for children who did not receive an inheritance. Since the courts of "common law" did not have the appropriate powers to implement such obligations, these disputes moved to the chancellor's court. By the middle of the 16th century. testamentary freedom of the testator in relation to immovable property was expanded; at the same time, the heirs, satisfied by the testator, had to financially provide for the children who did not receive the inheritance. Protection of claims related to the inheritance of real estate by will was carried out by the courts of equity. Movable property was divided, as a rule, into three parts: one part was inherited by the wife, the other by the children, and one was in favor of the church (“the share of the dead”). The right of initial claim to movable property of a person who did not leave a testamentary disposition belonged to the surviving spouse. This institution was called curtesy in English law - "courtesy".

Criminal law.

The norms of medieval criminal law were largely created judicial practice. Criminal statutory law was, among its sources, nothing more than a reproduction 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, but 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).

The English criminal law did not know the established set of norms relating to the "general part". Until the 12th century the notion of objective responsibility dominated in law. For many centuries, English criminal law dealt mainly with criminal acts (murder, robbery, kidnapping, violence against a woman, night burglary), excluding criminal inaction. All of the above criminal acts involved malicious intent (maluce).

From the beginning of the XII century. under the influence of Roman and canon law, views began to be asserted about the presence of guilt as the basis of responsibility. For the first time, the principle borrowed from the teachings of Blessed Augustine: "action does not make one guilty if the will is not guilty" was reflected in the law of Henry 1 in 1118. On the understanding of the form of guilt in the XIII century. the doctrines and works of English jurists had a great influence. So, Bracton, interpreting the concepts of intentional and reckless murder, pointed out that "if the killer committed the murder while engaging in an unlawful deed, then responsibility ensues" even in the absence of his guilt. At the same time, he proceeded from a religious-moralistic view of imputation: “everything that results from a crime is imputed to those who are engaged in illegal business.” In the XIII century. a person who even accidentally killed another person needed a pardon from the king, which he could, however, certainly count on. The murder weapon was confiscated in all cases to be cleansed of the "bloody stain by dedication to God." It was sold, and the money from the sale went to charitable purposes "to save" the soul of the murdered, who died without repentance.

In the development of the doctrine of the differences between a simple case and criminal negligence, a doctrine has contributed, called the "striking doctrine of Kok." “If someone,” Cook taught, “shot at a wild bird ... and the arrow, without any evil intention on the part of the shooter, hits a person who is in the distance, this is the case, because it is legal to shoot a wild bird .. ... but if he shot at a rooster ... or a tame bird belonging to another person, then the accidental murder committed at the same time is a grave (murder), because the action was illegal. fourteen

English medieval law from the beginning of the XIV century. firmly proceeded from the principle that "the imbecile or insane is not responsible for the crime." Liability of a person in case of self-defense in case of crimes directed against a person was excluded. The doctrine of complicity, developed by judicial practice, proceeded from the principle: "who does something through another, does it himself."

The severity of the guilt of accomplices was largely determined by whether the accomplice acted before or after the commission of the crime. Complicity before the commission of crimes, for example in the form of incitement, entailed, as a rule, responsibility equal to that of the "main executor", after the commission of the crime - a more lenient punishment. Together with the concept of complicity, the doctrine of "different degrees of crime" was created: "the main participant in the crime of the 1st degree", who committed the crime, "the main participant in the crime of the 2nd degree", who did not take a direct part, but was present at the scene of the crime, "additional participant", prior to the commission of the crime, who helped the offender with advice and did not prevent the commission of the crime.

In the thirteenth century, crimes were divided into three groups: 1) crimes against the king, 2) crimes against private individuals, and 3) crimes against both the king and private individuals. However, this classification of crimes was not retained in English feudal law, but a kind of three-term classification of crimes developed: treason, felony, and misdimeanour. Another classification of crimes was purely procedural in nature. These are crimes that were prosecuted by indictment (pleas of the Crown or indictable offenses) and were tried in a jury trial, and minor offenses (petty offenses), which were considered in summary conviction.

The first in the thirteenth century the concept of a felony was formed, which was punishable, along with the death penalty, by confiscation of property. This is evidenced by the word felony itself, which comes from the word fee - fief and Ion, which means price.

Initially, a felony was understood as any violation by a vassal of his duties in relation to the lord, disobedience to the lord, which entailed the deprivation of the vassal of the feud received by him from the lord. Later, felonies began to be understood as serious criminal offenses, the punishment for which

14. History of the state and law of foreign countries, part 1. O.A. Zhidkov, N.A. Krasheninnikova 2002

were accompanied by the confiscation at first only of land, and then of all property. The main form of punishment for a felony was the death penalty.
Felonies included such serious crimes as murder (murder), simple murder (manslaughter), forcible entry into someone else's home at night with the aim of committing a felony (burglary), theft of property (larceny), etc. The most serious crime was treason ( treason), which stood out from other crimes in the 14th century. The early concept of "treason" was highly vague. For example, in the 12th century, treason included any damage to royal rights, including catching wild animals without special royal permission, catching fish and game in royal possessions, any abuse of royal officials, etc. In 1352, a special statute was issued on crimes that should be considered high treason, i.e. not only a betrayal of the person of the king, but also a betrayal of the state.

Treason could be committed by "common law" or by violating the duty of loyalty to the king on the part of his subjects, which was called great treason (high treason), or - the duty of loyalty of a subordinate person to his master (small treason - petty treason). In this case, only the killing of a superior person was recognized as a betrayal, for example, the murder of a vassal of his seigneur, a wife - her husband or a priest - his bishop.

The accusation of "great treason" was a powerful tool in the hands of a strong royal power, widely used in the fight against their secular opponents, barons and recalcitrant clergy. In the latter case, the accusation of treason was especially effective, since it deprived the representatives of the church of the "privilege of the clergy", i.e. the right to consider their cases in church courts, which excluded the use of the death penalty (“the church cannot shed blood”).

At the same time, the king also pursued material gain, for the feudal lord convicted of "great treason" was deprived of his land ownership, which passed after his execution not to his heirs, but to the king.

Because of this, the concept of treason expanded in every possible way in the royal courts. The English medieval parliament did not stand aside either, which, in accordance with the changing political situation, issued statutes referring to "great treason" such actions that had nothing to do with "violation of the duty of loyalty to the king" (for example, censure as illegal, and then, on the contrary, recognition as legitimate one of the many marriages of Henry VIII).

Attempts to stop these abuses were made by the feudal lords more than once, but only in 1351, Edward III adopted a statute that put the interpretation of treason within certain limits for some time. The statute of 1351, according to E. Kok, "did not replace the provisions of the "common law", but only gave them a legal expression."

The confiscation of property for the commission of a felony was abolished only in the 19th century. The name of this crime comes from the French trahir and the Latin tradere, meaning an act of perfidious betrayal.
The concept of "great treason" was to be limited to seven forms: the intent of the death of the king, his queen, or their eldest son and heir (at the same time, contrary to the actual meaning, the concept of "intention" included not only the presence of intent, but also the action that reveals it) ; rape of the king's wife, his eldest unmarried daughter or the wife of his eldest son and heir, which was recognized as such even with the consent of the woman"; waging war against the king, which includes any "violent indignation of a large group of persons against the royal government"; going over to the side enemies of the king in his realm "by assisting or assisting them in the royal or other world"; killing the chancellor, chief treasurer or royal judge (the latter provision was added to the statute subsequently).

This list was supplemented by other crimes against national security known to the "common law": sedition (sedition), an illegal gathering for the purpose of causing disorder (riot), as well as conspiracy, an agreement between two or more persons with illegal intentions. The vagueness of the concept of "collusion" made it possible to widely use it both against all forms of dissatisfaction with the existing regime, and in relation to private torts (tort) or even to violations of contracts under such circumstances "which make these violations harmful to society."

In the statute of 1352, it was indicated that in the future only those crimes can be considered as high treason, regarding which a special act of the king and parliament will be issued. Subsequently, such acts were repeatedly issued, sometimes expanding the range of such crimes, sometimes narrowing it.

For treason, the death penalty was provided for by hanging and by tearing to pieces for men and burning for women. The death penalty was accompanied by confiscation of property.

"Misdemeanor" developed gradually from offenses that previously entailed only the recovery of damages in a civil order. Misdemeanors were all other crimes except treason and felonies. These included crimes that concerned the interests of private individuals only and did not affect the interests of the crown. Unlike punishment for a felony, misdemeanors did not impose confiscation of property, the death penalty, the procedural rights of persons accused of a misdemeanor were somewhat different from the rights of persons accused of a felony.

Over time, the inclusion in this group of serious crimes, such as fraud, the production of false documents, forgery, erased the fundamental differences between a felony and a misdemeanor. This was facilitated by the possibility of choosing one form or another of the claim in the commission of crimes. If the claim for a felony was satisfied, for example, when inflicting injury, the offender paid with his life, but if the victim sued "for violation of rights", then this crime was classified as a misdemeanor, entailing imprisonment or a fine. Among property crimes, it was very early recognized as serious arson and forced entry into someone else's house. The allocation of these felonies was associated with the sacred attitude of the British to the house, as to a castle that protects it from harm ("my house is my fortress"). In this regard, the arson of even the most dilapidated dwelling was punished by burning the offender himself. Bracton's interpretation of the kidnapping (larceny) was peculiar, who defined this concept not as a simple theft, but somewhat broader, as "malicious handling of another's property against the will of the owner, with the intent turn this property into your own." Any theft in the time of Edward 1 was punishable as a felony by the death penalty, but under Edward III (XIV c.) Classification of even petty theft as a felony began to cause protests, therefore, remaining a felony, "petty theft" (with the value of the stolen less than 12 pence) was not a felony, but a misdemeanor. This was one of the many legal anomalies known to English criminal law. These include the abnormally heavy criminal liability for vagrancy, which was suppressed in every possible way by the so-called bloody legislation from Henry VII (1457-1509) to Elizabeth 1 (1533-1603). During the period of the initial accumulation of capital, when a huge mass the working people were left without a livelihood, the government resorted to "bloody legislation" against vagrancy and begging. Already under Henry VII, 72,000 "large and small thieves," as they called vagabonds, were hanged. Laws 1530 and 1536 only old and incapable beggars were allowed to collect alms. A law passed during the reign of Edward VI (1547-1553) gave vagabonds one month to get a job; after that, they could be given into virtual slavery to anyone who denounced them to the authorities. The owner could force such slaves to work, sell them, bequeath them by inheritance, or lease them out. For unauthorized leaving for the first time, a slave was branded; escaping for the third time was punishable by death. In the reign of Elizabeth I, a statute was issued in 1572, according to which all beggars over 14 years old, if they were not crippled and did not have permission to collect alms, were subjected to the first cut and branding. Upon repeated detention, these punishments were repeatedly toughened (cutting off the ears, tongue, tearing out the nostrils, cutting off the limbs); in the case of the third offense the death penalty was applied in the most severe form. 15

The goals of punishments changed at certain stages in the development of feudal law: from satisfying the victim and his relatives for the damage caused to preventing a re-crime by intimidation (pulling out the insides from a living body exposed at a pillory, scourging with a whip, etc.) in England there were about 50 types of crimes punishable by death. These included such types of death penalty as burning, breaking on the wheel, and quartering. The extreme cruelty of punishment, which was hardly amenable to reform, was in the future associated with the same religious and moralistic approach to crime, which determined the professional and ethical positions of judges, who were assigned the main role in maintaining law and order.

The incommensurability of the severity of the punishment with the severity of the crime often forced the jury either to justify the notorious criminal, or, for example, to evaluate the stolen property in an underestimated amount. The “privilege of a clergy” also saved from cruel punishments, which was extended to all persons who had the right to be initiated into a clergy, although they were not in this rank (in fact, to all men who could read). But in 1487 a statute was issued stating that laymen could enjoy the "privilege of clergy" only once. As evidence of the use of spiritual privilege, a brand was put on the finger. Under Henry VIII, "privileges of the clergy" were deprived of all persons who committed murder "with premeditated, evil intent."

15. History of the state and law of foreign countries. Ed. P.N. Galanza 1980

16. History of the state and law of foreign countries, part 1. O.A. Zhidkov, N.A. Krasheninnikova 2002.

procedural law.

In the XII-XIII centuries. the process was of an accusatory nature, i.e. the parties themselves took care of the progress of the case. In the XII century. there was still a "judgment of God" - ordeals. An oath was considered effective evidence, the violation of which entailed criminal punishment and swearing. In the future, the adversarial-accusatory process became dominant in the courts of "common law" in both civil and criminal cases.
The investigation of the case directly by the judge (which is the main characteristic feature of the investigative process) was resorted to in the chancellor's courts and in church courts. But torture has also been used in "common law" courts under certain circumstances. If the accused pleaded guilty, he was immediately sentenced to punishment. If he "stood silently," it was found out whether he was silent "out of malice" or whether he was "struck by the Lord."

In common law courts, the defendant was not required to prove his innocence: the burden of proof was on the accuser. However, the accused did not receive a copy of the indictment prior to trial; he could not demand a confrontation with witnesses; Witnesses he wanted were interrogated without being sworn in.
The "common law" proceeded in cases of treason and misdemeanors from the presumption that silence is an admission of guilt. When accused of a felony, the silent was subjected to torture. They put him on an iron plate and starved him. Many preferred to die under torture, because by dying unconvicted, a person saved his property from confiscation. Actually, there was no preliminary investigation. Church courts considering family cases (up to 18.57 years) resorted to the services of investigators who studied evidence and established facts. Their conclusions were the basis of the decision. The institution of the jury began to take shape already in the 11th century, but received procedural registration according to the assizes of Henry II and since then has become one of the most characteristic features of English legal proceedings within the framework of "common law". According to the Great Assize of Henry II, every free person could "put himself on the assize", i.e. ask for a royal writ to dismiss his case for free custody in the ordinary court and to transfer him to the royal court with a jury. Upon receipt of such an order, the sheriff of the county where the disputed land was located had to send 4 full knights of this county to the royal court, who elected 12 full knights from the given area. At the trial, these knights were false under oath to report everything that they knew about the actual circumstances of the case "through their own sight and hearing, or from the words of their fathers or from the words that they would believe as their own." Their unanimous testimony decided the case. In case of disagreement, 12 new jurors were elected, and so on until unanimity in testimony was reached. Thus, the jurors were in this case witnesses of the fact, people in the know. In accordance with the Clarendon (1166) and Northampton (1176) assizes, the search for criminals through a jury was extended to the criminal process. These assizes established that 12 full knights or people from each hundred and 4 full persons from each village must report under oath to traveling judges everything that they know about the crimes committed in the area, as well as about the persons who committed them and who are suspected of these crimes. . This order extended to such crimes as secret murder, robbery, robbery, treason, arson, making counterfeit coins and harboring murderers and robbers. If the persons pointed out by the jury as criminals or suspected of committing a crime did not confess to the crimes committed, then they had to be cleansed by a cougar test of water and an oath. Persons who passed the test, but enjoyed "notoriety" and were considered, according to the jury, "capable of the most reprehensible deeds", were expelled from the country and outlawed. Thus, the jury carried out two functions at the same time: they carried out the search for criminals and persons suspected of committing crimes, and at the same time, as it were, they were the body for bringing these persons to trial. Gradually, during the XIII-XIV centuries. There are two types of jury ("jury"): "grand jury" and "small jury". 17 The Grand Jury (of 24 members) acted at an intermediate stage between the preliminary and judicial investigation: it decided on the issue of bringing to trial, i.e. it affirmed or rejected an accusation brought against a certain person. The jurors themselves have ceased to be witnesses of the fact. In connection with this circumstance, the investigation was gradually separated from the trial of the case. If the “grand jury” approved the prosecution, then the case was sent to a court with the participation of 12 jurors (“small jury”). It considered the case on the merits and issued a final verdict; at the same time, the verdict was recognized as valid only with the unanimity of the jury. After the verdict was passed by the jury, the judge passed the verdict or made a decision.

17. General history of state and law. Omelchenko O.A. 2005

In order for a free man to be elected to the jury, he had to have a property qualification: the Second Statute of Westminster established that those free holders of land from which the income from which is not less than 20 shillings a year can serve as a jury, and under the law of 1348 this qualification was raised to 40 shillings.

Interestingly, lying was not always considered a crime in English courts. Even the ecclesiastical courts, which believed that breach of trust cases fell within their jurisdiction, missed perjury from their field of vision.
The law of 1540 introduced a penalty for bribing a witness, and in 1562 perjury began to be punished by a civil fine. The "Star Chamber" recognized perjury as a crime in the form of "false testimony in court" as punishable. After the parties had fully presented their evidence, the judge had to summarize the facts of the case and advise the jury, pointing out the legal issues in the case. The jury was supposed to pass a verdict on the guilt or innocence of the accused unanimously.
The process was of an open nature, with the exception of the process in the "star chamber". Due to the accusatory nature of the process in England, the institute of public prosecution, represented by special officials, did not develop. From the 13th century professional lawyers appeared, which were divided into two categories: barristers and solicitors, or attorneys. The former appeared in court, i.e. took the same part in the process as their client, if he personally handled the case. Solicitors - intercessors for cases were mainly engaged in the preparation of cases for judicial review. Initially, barristers were given the opportunity to speak in court only with the permission of the judges. From the end of the XV century. "common law" courts began to record in their registers the names of those persons whom they recognized as representatives of the parties, thereby giving them a peculiar status of officials at the court.

In the era of absolutism, elements of the inquisitorial (search) process began to penetrate into the legal proceedings. A new type of prosecution arose - by indictment, which involved the arrest of the suspect and keeping him in custody until the day of the trial. At the same time, the accused did not have the right to familiarize himself with the evidence of his guilt or present desirable witnesses. The interrogation of the accused was carried out with the use of torture, which was officially sanctioned from the middle of the 15th century, despite the fact that, according to the ideology of common law, torture was fundamentally unacceptable. According to the ancient tradition of English law, the silence of the accused was regarded as a complete confession of guilt. 18 18. State and law of the ancient world and the Middle Ages. V.V. Kuchma 2001 As for the formal theory of evidence, characteristic of continental procedural law, it was not very widespread in England: the jury was mainly guided by its own conviction. In general, the inquisitorial nature of the process was characteristic mainly only of the high political tribunals of the absolutist era (primarily, the so-called Star Chamber). As a rule, appeals against court decisions were not allowed: revision of sentences and decisions made on the basis of a jury verdict was fundamentally impossible. Only the Court of Queen's Bench had the right to intervene in the judicial procedure, and only in the event of an inaccuracy in the preparation of the protocol (the so-called "mistake claim"). Only in the XVII century. the litigant has the right to apply for a new hearing.

Conclusion

It is often said that the English law of the Middle Ages in many respects expresses the spirit of the English people, and of this there is no doubt. The desire to create a consistent and harmonious legal system played an important role in the development of English law. The English legal system has one feature dating back to the period of feudalism that distinguishes it from almost all the legal systems of the countries of the world: a significant part of legal acts was not approved by any parliament.

It is customary to refer to the sources of feudal law in England, first of all, the customs, normative acts of kings, which constituted royal legislation.

Also, international law, canon law, had a huge impact on the development of the law of England. In the XIII century, the so-called "common law" began to develop, and then the "right of justice" appeared, because. With the development of relations in the country, it was impossible to resolve all issues based only on the outdated norms of "common law".

Land rights in England were determined by two main concepts of tenancy - possession, holding and estate - the amount of ownership rights, legal interests.

In "common law" there are three types of feudal holdings:

· Holding "free-simple"

Conditional land holdings

· Protected holdings

Also in England there was such an institution as trust property.

As for the law of obligations, contractual relations began to develop in Anglo-Saxon times, but the concept of a contract did not develop at that time. However, in England both obligations from contracts and obligations from torts are known.

The marriage and family law of England was under the strongest influence of canon law. The family was patriarchal. The legal status of a married woman was extremely limited.

Together with the institution of trust property (trust), the whole procedure for receiving inheritance by minor heirs, both by law and by will, began to be determined.

The English criminal law of England during the period of feudalism knew such concepts as recidivism, complicity, aggravating and extenuating circumstances.

A peculiar three-term classification of crimes has developed: treason (treason), felony (felony) and misdemeanor (misdimeanour).

The goals of punishments changed at certain stages of the development of feudal law: from satisfaction of the victim and his relatives for the damage caused to the prevention of re-crime by intimidation.

The process was of an accusatory nature, i.e. the parties themselves took care of the progress of the case. The institution of the jury began to take shape already in the 11th century. Gradually during the XIII-XIV centuries. There are two types of jury ("jury"): "grand jury" and "small jury". In the era of absolutism, elements of the inquisitorial (search) process began to penetrate into the legal proceedings

Bibliography:

1. History of the state and law of foreign countries. Ed. P.N. Galanza 1980

2. General history of state and law. Under the editorship of K.I. Batyr 1999

3. General history of state and law. Z.M. Chernilovsky 1999

4. State and law of the ancient world and the Middle Ages. V.V. Kuchma 2001

5. History of the state and law of foreign countries, part 1. O.A. Zhidkov, N.A. Krasheninnikova 2002.

6. General history of state and law. Omelchenko O.A. 2005

7. Early feudal England. Savelo K.T.1977

Introduction……………………………………………………………………………….1

Sources of feudal law in England…………………………………………..2

Ownership……………………………………………………………….7

Obligation law…………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………

Marriage and family law……………………………………………………………………………………………15

Criminal Law…………………………………………………………………..17

Procedural Law……………………….………………………………………23

Conclusion………………………………………………………………………...…27

References………………………………………………………………..29

Nesterova I.A. Feudal law of England // Encyclopedia of the Nesterovs

The English law of the Middle Ages in many respects expresses the spirit of the people. 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.

History of English law

Speaking about the history of English law, one should mention a controversial aspect that does not allow many jurists to sleep peacefully: whether the "Anglo-Saxon Truth" (7-9 centuries) - the oldest monument of the English legal system - is purely English or is a combination of the customs of the English and Romanized Britons.

It can be pointed out that there is little likelihood of a merger between these two tribes in the era when the outlines of the English legal system were emerging. The era of the British settlement was a time of fierce struggle between the invaders and the natives, which ended with the pushing of the latter to the western part of the country. At the same time, we must not forget that the "Anglo-Saxon Truth" did not apply to the entire territory of England, but only to some of its parts. The fact is that at the time of the "English Pravda" the state as such did not yet exist. The vast majority could neither read nor write. For this reason, laws were written in a simplified form. All laws take their name from the names of the kings who or under whom they were invented.

The starting point of English law is still considered by most to be not the scattered and chaotic "Anglo-Saxon Truth", but the laws that came into force after the victory of William of Normandy in 1066. Thanks to Wilhelm, a functional system of courts was created. The courts were divided into local and central. After the adoption of the norms of law by William of Normandy, most of the peasants were freed from serfdom. It was he who created English law, namely English law, and not Norman or Roman law.

Of great interest is circuit court system in England. At the beginning, the judges traveled for the purpose of earning money, but later their trips acquired legal nature. They really began to resolve litigation. The problem was that judges used local customs to resolve disputes. But the crown wanted administrative unity and uniformity. For this reason, the royal judges had to reduce all customs to a single law that could apply to all territories of the state. These rules have been used in the courts of Westminster.

Gradually England acquired common law. The authority of the court as an institution grew. The first detailed exposition of the common law was created by the hand of Henry Bretton. He sat in the Court of King's Bench and was a traveling judge in the middle of the thirteenth century. But on the other hand, Bretton himself admitted in the title of his work ("On the Laws and Customs of England") that custom served him as one of the sources of creativity.

Obviously, English law was influenced by other legal systems. Moreover, they took direct and indirect part in its creation. These systems include both canon and merchant law.

Sources of feudal law in England

Customs were the main sources of law in the early feudal states in England. In a number of states, collections of customs were published, but due to the low literacy of the population, they were of little interest to anyone. Until the Normans conquered the territory of England in the 11th century, the main source of law, custom retained its pre-eminent role among the sources of law. The promulgation of laws very early became among the Anglo-Saxon kings one of the means of raising their prestige and satisfying material claims.

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.

In those days, the royal office was actively working, which issued orders, which were drawn up on the basis of complaints or statements from the population. These orders were aimed at resolving controversial issues, eliminating problems. Later, court orders appeared, 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.

In the process of legal development, the orders became more meaningful. They began to be subdivided into categories of claims, claims. Then, they began to be classified according to the types of offenses.

The assizes of Henry II contributed to the evolution of writs. It was they who established a uniform way of considering civil litigations about land.

In medieval England, the parties to disputes could not freely justify their rights, but were obliged to rely on these models, 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.

The king was unable to cope with the flow of complaints. Many of them remained unanswered. For this reason, part of the authority to resolve judicial issues passed to the Lord Chancellor. Since the 16th century, the Lord 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.

Among the sources of Anglo-Saxon law, the norms of commercial and canon law occupied an honorable place.

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. .

Feature of the law of feudal England we can consider the fact that the role of church courts either decreased or increased depending on the degree of civil strife and royal ambitions.

The problem of medieval law was that church dogmas assumed the role of a source of law. This went on for quite some time. In the 13th century, the church decided not only family relations, but also contractual ones using the term sin of "unjustified trust". Henry II fought decisively against the expansion of the jurisdiction of church courts. At the beginning of his reign, in the list of forms of claims of the royal courts, there are already claims "about the prohibition of church courts to deal with litigation about property and debts." The Statute of Edward I of 1285 forbids the ecclesiastical courts from hearing cases of "breach of promise" on the grounds that they are not purely "spiritual matters" requiring "moral correction."

Before the 16th century, no one denied the legitimacy of papal jurisdiction in such matters as orthodoxy of faith and worship, purity of morals, the legality of marriages, the legitimacy of children, and the making of wills.

In the 16th century, Parliament passed an act according to which the validity of the rules of canon law in England is preserved. At the same time, the only law relating to the revision of canon law was the decrees of Canterbury and York Councils, enacted by Henry VIII under the name "Letters of business".

Property law in medieval England

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 of a certain layer of free peasants - land owners, with the supreme ownership of the land by the English king. In English law, movable and immovable property were distinguished, but it was traditional to divide things into real and personal property. This division was associated with various forms of claims that protected real or personal property.

Real claims were defended by ancestral real estate and only such rights to land that were in the nature of free holding. In addition, these claims were of an absolute nature, in the event that these claims were satisfied, the lost thing was returned to its owner. These included the rights to a feudal title. All other issues were protected by personal claims, which could be claimed for damages.

According to the statute of 1290, the lords received the right to sell land, provided that all the official duties of the former one pass to its new holder. The statute also confirmed the content of the previously issued statute of 1279, which forbade the sale or otherwise transfer of land to the "dead hands" of the church. 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, which means the most complete possession in terms of the scope 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. This provision continued in England until the passage of the Property Act in 1925.

The institution of trust property has become a purely English institution of property law. 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, and religious orders.

The essence of this institution was that one person - the founder of trust property - transfers his property so that the recipient manages the property, uses it as an owner in the interests of another person, the beneficiary, or for other purposes, for example, charity.

Criminal Law in Medieval England

Separate fragments of the law of the first Anglo-Saxon kings show how complex and heterogeneous, but stubbornly and naturally, the main instrument of criminal law regulation was created. This is explained by the fact that the true power of law did not yet exist, and the power of the state was not enough. First of all, because for a long time medieval society felt the residual effects of the transition from the power of the community to the power of the state. The dominance of criminal law in the period of customary law arises from certain material conditions in the life of Anglo-Saxon society.

In the Anglo-Saxon truths, one can find various types of crimes. In the earliest judicial codes, there is no concept of a state crime, and there is only a mention of a violation of "royal patronage". Later, this type of crime is explained quite clearly. Particular attention was paid to crimes against property. Crimes against the family (betrayal of spouses), religious (work on Sunday, theft in the church) and military (avoidance of participation in the campaign) are also mentioned.

After the Norman Conquest, the range of punishable acts expanded. There are many new types of crimes. The concept of a state crime has expanded. The offense, which was punishable by huge fines and imprisonment, was considered the preparation of firewood, scaffolding and hunting in royal reserves without proper permission from the king. Major lords who violated the ban on keeping feudal retinues were also punished. Increasing attention is paid to crimes against the "holy church". characteristic feature development of English criminal law from the middle of the XII century. became its practical focus. This direction of criminal law regulation was chosen as a priority during the reign of Henry I, but only under Henry II, who carried out the relevant legal reform, the courts developed new legal norms, the totality of which later began to be called common law. The rich practical experience accumulated by the royal judges was periodically summarized by theoretical works, which made it possible to solve theoretical problems and develop a unified doctrine of law, including criminal law. In the fact that it was in the middle of the XII century. in the reign of Henry II, English law changed significantly, because "even the most superficial comparison between the Leges Henrici Primi and the treatise of Glenville shows that something close to a revolution took place over the course of a century" .

Of the crimes included in the concept of a felony, treason begins to stand out. One of the types of treason was considered crimen falsi, i.e. forgery of the royal seal on a charter or decree, as well as the minting of counterfeit coins. Before Edward III, treason, as we see, was not clearly defined. This is also evident from the statute of 1352, which notes:

Anglo-Saxon collections of the 11th century. intimidation as the main principle of punishment for serious criminal offenses begins to appear. The Laws of the Whip abolished the ransom for such serious crimes as the destruction of the house, arson, red-handed theft, secret murder and treason. In the form of punishment, self-mutilation (chopping off an arm or leg, cutting off the tongue, nose, ears, etc.) became widespread. The death penalty, as a punishment, was sometimes massive.

After the Norman Conquest, the situation changed and already in the XII century. the felony received, although not quite a clear, but quite clear concept through a list of crimes that are determined by its name. She included:

homicide, which can be spiritual and bodily; on a simple occasion. This also includes premeditated murder (murder), committed secretly and without witnesses.
Arson- a crime committed when someone, in rebellious rebellion, set fire to maliciously and insidiously;
Rape;
Robbery and robbery;
Theft.

An important group of criminal offenses is the misdemeanor. She combined less serious crimes.

Misdemeanor- lesser and lighter crimes, which are prosecuted by the civil order, both in private grievances and in the actions of the crown, in view of their connection with the violation of the royal peace.

Something that was not consistent with the law was considered an offense, while some entail criminal penalties, while others entail fines and imprisonment or only fines, depending on the deed.

During the reign of the Norman kings, punishments were largely arbitrary and depended on the judges. The English feudal court was little bound by precise rules in determining the amount of punishment. The precedent system was very flexible. It gave judges the opportunity to interpret legal norms.

Arbitrary actions in determining punishments continued until Edward II. During the era of the reign of Edward II and Edward III, a clear scale of punishments developed, shown in the figure below.

The scale of punishments that developed under Edward II and Edward III

The system of punishments was violated by the so-called privilege of spiritual status, under the guise of which, before Edward III, the clergy tried to get out of the criminal law. A statute issued in 1352 limited the effect of such a privilege and decreed that all clerics who were convicted of treason or a felony against the king were subject to criminal punishment. For women with a spiritual dignity, this privilege has never been extended.

All the changes that have taken place in feudal law since the 12th century have had a beneficial effect on the development of the criminal law of England, giving rise to its very concept, which is inextricably linked with the brightest moments of English history. This concept consisted in the continuous interest of society in the consistent formation of the most complete and comprehensive criminal law. The implementation of the ideas of the concept originates from imperfect and uncouth definitions and unstable institutions that developed in the 13th century, which were continuously improved by preserving their main characteristic properties and by changing or supplementing a certain part of the law that was no longer suitable for application. It was in criminal law that these changes were connected with the daily life of a person more than in other branches of law. An important role of criminal law in feudal England was that it had a strong influence on the moral aspect of human life. First of all, a person experienced moral pressure when condemned. In addition to the loss of life, property or personal freedom, his name was dishonored, which was a stigma for the whole family. The gradual change in the moral foundations in society, in particular, the attitude towards crime, does not affect the legislation itself or punishment. This is due to the fact that the political and state interest in this matter has never been lower than the moral interest.

Family marriage law

In the traditional way of medieval society, the family was one of the main microstructures that determined the status of a person, the form of his behavior, the system of personal relationships. The study of traditional family ways in various social strata makes it possible, indirectly, through the moral and ethical attitudes of each group, to understand the specifics of their corporate and individual ideas.

The marriage, its validity, the personal relations of the spouses were regulated by canon law. But the property relations of the spouses, the legal status of a married woman and children were determined by "common law", which established the primacy of the husband and father in the family. The movable property of the wife passed to the husband; her property was in the management and use of her husband and was returned by her relative after her death in the event of a childless marriage. Gifts made to the wife, in this case, were returned to the husband. In fact, the wife was deprived of legal capacity: she could not independently participate in contracts and transactions, she could not bequeath her property.

In the lower strata of feudal society, a married woman had legal capacity: in many cities and counties of England, she had the right to manage her property, to conclude contracts, and even to independently engage in trade.

The situation of illegitimate children was very difficult, they did not have any rights not only in relation to their father, but also to their mother: even their parents, legalized by their subsequent marriage, were forbidden.

In England in the 12th century, the law of Henry II required that any girl who became pregnant out of wedlock should report it to the authorities. If she did not do this, then when the child died, she was subject to death.

Where the maintenance of normal family relations became impossible, the church allowed excommunication from the table and the bed: the marriage was preserved, marital relations were broken.

Marriage between close relatives was not allowed in Medieval England. But neither the peasant nor the peasant woman was allowed to go to another village. Nevertheless, the church turned a blind eye to the inevitable incest that resulted from this.

The legality of physical punishment of the wife was preserved throughout the Middle Ages, and in the earliest period of feudalism, neither her sale nor even her murder was forbidden.

It should be pointed out that a peasant woman is more free than the wife or daughter of a feudal lord. The position of these latter was due to the fact that relations between spouses, as well as between parents and children, were determined by the interests of protecting and maintaining feudal land holdings. The man was not only considered the head of the house, but he seized all the property of his wife, which came after her death by the right of "courtesy". The woman was deprived of any legal capacity. On the contrary, in many cities and places in England, among the peasants, artisans and merchants, a woman could manage her property, conclude contracts and even engage in trade on her own.

The situation of illegitimate children was extremely difficult, because they were deprived of the right to demand anything from their parents. The attempt of the church to allow the legalization of illegitimate children by subsequent marriage met with sharp resistance from the barons, who achieved the issuance of the Merton Statute (1235), according to which the legalization of illegitimate children was prohibited.

Thus, we examined the features of the formation and development of English law, showed how property and obligation law was regulated in feudal England. Do not forget about family and marriage relations.

One of the most important legal institutions is the judiciary. It is in England, starting from the 16th century, that the "judicial precedent" is being formed. Equally important is the criminal law.

The role of the Norman Conquest in the development of English law cannot be denied. There are also signs of the penetration of Roman law into England. Yet English law is unlike any other legal system in other countries. It is characterized by continuity and autonomy of development. English law combines both the fundamental norms that have arisen from customs and the norms adopted from the systems of other countries. This is the originality and uniqueness of the law of England.

Literature

Jenks E. English law. M., 1947. p. 19
Journal of History of State and Law, 2006, No. 5., p. 43.
Petrushevsky D.N. Magna Carta and the constitutional struggle in English society in the second half of the 13th century, M., 1918, p. 39.
Khatunov.: S.Yu. Criminal Law of Medieval England// Collection of scientific papers. Series "Humanities", vol. No. 10 SevKavGTU, Stavropol, 2003
Livantsev K.E. History of the medieval state and law. - St. Petersburg: St. Petersburg State University, 2000.
Yurchenko E.N. Family Relations in Medieval England Abstract of the thesis. cand. dis. SFU 2008.

Medieval law was formed in the form of customs, which were the main source of law. The Norman Conquest had a great influence on Anglo-Saxon law and marked the beginning of the formation of a unified legal system. This system was called "common law". It developed under the influence of Anglo-Saxon and Norman customs and decisions of royal courts. She was also influenced by canon law. Common law rules regulated a wide range of social relations. The rules of the common law were enshrined in written records of judgments. From the second half of the 13th century, reports began to be published annually, which created the prerequisites for the formation of the main institution of English law - judicial precedent. The institution of royal orders had a great influence on the development of law.

The plaintiff turned to the king for the protection of his rights, and the king, for a fee, could accept the claim for consideration. Royal orders created the conditions for the formation of a special system of norms of "rights of justice". The subject, in case of violation of his interests by the court, turned to the king. The king, and later the Lord Chancellor, considered appeals and made decisions, and they were not bound by valid law, but could be guided by Roman, canon law and the voice of their own conscience. The most important sources of law were normative acts emanating from the king and parliament.

Sources of law. English law was distinguished by intricacy, complexity and casuistry. Customary law becomes the main source of law. At an early stage in the formation of law, kings issued orders on a case-by-case basis, on the basis of which the parties could justify their rights. The practice of the royal courts became another source of law (judicial precedent). Royal legislation or statutory law was also important. Later, the name of the statute was assigned to an act passed by parliament and signed by the king. The norms of commercial and canon law must also be attributed to the sources of medieval English law.

Ownership. In England, land relations contained a number of features. Knightly service was a noble holding. From the 12th century, personal service was replaced by the payment of "shield money" and the transition to a mercenary army. The institution of trust property arises, which means the formal transfer of ownership of property to a person, the right to manage it and use it in the interests of the owner.

Law of Obligations. Under English law, every contract is an agreement, but not every agreement is a contract. In 1589, the Stenborough v. Worker court made an important decision according to which “a promise given in exchange for a promise can be a cause of action”, that is, from now on, a person who has not fulfilled his obligation for the promised or given equivalent , was obliged to be responsible for all losses incurred by the other party.

Criminal law. Crimes were classified into three groups: treason, felony (murder, breaking into someone else's home at night) and misdemeanor (fraud, forgery, etc.). There was another classification, which was of a procedural nature: crimes that were prosecuted under an indictment and considered in a jury trial.

Marriage and family law. It was heavily influenced by canon law. For example, bigamy, which was a felony, was prohibited. The family was patriarchal. A married woman did not have the right to appear in court and independently conclude an agreement. Anglo-Saxon customary law recognized divorce, but canon law did not allow it. In exceptional cases, divorce was allowed by the Pope and the English Parliament.

inheritance law. During this period, England did not know a single system of inheritance. The testamentary disposition was introduced along with the institution of trust. From 1540, bequests of real estate were allowed for the first time. The right to the initial claim to movable property of a person who did not leave a testamentary disposition belonged to the spouse.

In the early feudal states, custom was the main source of law.

The source of English feudal law was statutes, legal acts of the central government. Initially, they included acts of royal power, which had various names - statuses, assizes, ordinances, charters. With the formalization of the legislative powers of parliament, statutes began to be understood as legal acts adopted by the king and parliament. Acts passed by parliament and approved by the king were considered the highest law of the country, capable of accepting and supplementing the Common Law. The totality of legislative acts of the king and acts adopted by the king and parliament is called statutory law.

Just as in other barbarian states, truths were compiled in the Anglo-Saxon times as monuments of customary law.

The Norman conquest in 1066 had a significant impact not only on the English state, but also on rights. William the Conqueror announced a curtailment of the old Anglo-Saxon customs, but the establishment of a strong royal power led to an early override of rights. particularism and the establishment of a common law for the entire kingdom. This was facilitated by the judicial reform of Henry II. In the course of this reform, the jurisdiction of the barons and the expansion of the powers of the royal court were significantly limited by the introduction of the institution of traveling judges. Initially, judges used local customs in their activities, but gradually the practice of recording the most important court decisions in litigation rolls, and then in yearbooks, gradually developed.

When resolving similar disputes, the judges began to refer to previous decisions. That. judicial precedents became the main source of feudal law in England. From the institute of traveling judges, 3 judicial bodies were formed:

Court of King's Bench;

Court of General Claims;

Treasury Court.

And the procedures of these courts became known as common law.

To obtain protection in the courts of common law, the plaintiff had to apply to the office of these courts with a demand to provide him with a court order, which, firstly, confirmed the correctness of the nature of the dispute and its solvability on the basis of normal public law; secondly, the court order ordered the defendant to appear in court under threat of a fine. Already by the fourteenth century. there was a system of court orders, which ceased to be supplemented by new ones. There was a formalization of common law, but the development of commodity-money relations led to the emergence of new contracts and, accordingly, property disputes that were not provided for by common law precedents. The plaintiffs did not receive protection in the courts of common law, they directly appealed to the king, who instructed the Lord Chancellor to resolve the dispute. The Lord Chancellor initially resolved disputes on the basis of his own ideas of justice, freely choosing the norms of either Roman or common law. Over time, the precedents of the court of the Lord Chancellor constituted the second system of English feudal law - the law of justice.

With the strengthening of state power and after the emergence of parliament, the normative acts of the king and parliament became another source of English law.

So, along with common law and the law of equity, statutory law began to stand out in England.

Unlike continental Europe, the formation of English law was not significantly influenced by Roman law. Why?

There are many reasons for this, the main one being political. During the period of the establishment of absolutism, the court of the Lord Chancellor acted as a supporter of the king, which justified the expansion of the powers of the monarch with reference to the norms of Roman law. Therefore, the English had a distrust of Roman law, as well as a legal system that justifies despotism. Because common law courts were in opposition to the king and referred to old Anglo-Saxon customs and their own precedents, so the English value their native law as a right that protects freedom and prevents arbitrariness.

The regulation of individual institutions of feudal law in England is characterized by the following features:

1. The regulation of land relations in England is characterized by the use of the institution of trust, i.e. trust management. This right arose due to restrictions in the transfer of land by will to churches and monasteries. This prohibition began to be overcome by transferring real estate to an individual, with the provision of all the powers of the owner. Over time, the trust became the main institution for regulating land relations.

2. In English feudal law, a peculiar classification of crimes has developed, not according to the object of the encroachment, but according to their severity:

Trizn (treason). At first, this is a crime against the king, and then a serious crime against private individuals (murder of an accidental master, wife - husband). For such a crime, the death penalty.

A felony is a crime of moderate gravity, for which a person was subjected to imprisonment, large fines and corporal punishment.

Misdemeanor - minor offenses for which small fines were established, imprisonment for several days.

English criminal law was the most cruel in Europe.

3. The originality of the trial in England in the preservation of the features of the adversarial process and the emergence of a jury. Historically, the jury was formed from the practice of questioning the local population by royal judges and the institute of conjugality.

In England, there are 2 juries:

Grand jury: 21 jurors, intended to confirm the indictment. The decision was made by majority vote.

A small jury, which participated in the consideration of the case on the merits and passed a verdict of guilt or innocence. The verdict was passed unanimously.