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from Gainesville, Florida Yeah, hello, I'm Mike Cannon. And this is conversation. The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and his or her capacity through reason for enlightened self government.

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Without the rule of law, individual rights become subject to unrestrained power, and rational self government is impossible. One of the greatest bulwarks in defense of the individual rights of ordinary citizens against arbitrary and abusive power is what jurists call common law. This law, first administered by courts of England in the Middle Ages, is the source of principles.

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Treasure today in American society principles such as trial by jury, right to speedy trial and an independent judiciary. How did common law first come about will inquire into its origins when I return in a moment? Okay? Live presents conversation from the University of Florida, a discussion of social, political, scientific and religious issues of the day.

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Your host is Dr Michael V. Gannon, professor of history and Ethics, an assistant dean of the College of Liberal Arts and Sciences at the University of Florida. My guest on this conversation is Michael W. Gordon, professor of law in the Spencer Holland Law Center of the University of Florida.

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Mike, welcome to conversation. Thank you very much. Well, we're going to inquire into the origins of common law. But before we do, I'd better ask, Why do we call this law common? Well, it's It's a commonly asked question, I think, and I don't think it really has a great deal more meaning than what the civil law means by or the socialist law.

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It's a name that some people say is definition for law, held commonly throughout throughout England. But it essentially is a single word description of the legal tradition that has developed in England, which is very different from that which developed in the continent and also quite different from the other of the Western traditions, which is quite new in the socialist tradition.

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Well, am I right that Roman law and canon law of the Church predominated on the continent, and this was a law that was imposed from the top down by civil authority in the one instance by church authority on the other. But common law is something that rose from the grassroots to flourish in England.

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Is this correct? A. Similarly all right? Yes, it is the common law developed right in the courts and even at the time when the common law was developing, which was really the first 2 to 3 centuries after the conquest and 10 66 wallet was developing in the courts at least after the first century, people were studying canon law and the Roman law in Oxford and Cambridge and as soon as those universities developed.

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But the people who are studying those were studying them as courses that they might study in history or in any other subject. They were not studying it to become lawyers. Indeed, English law wasn't introduced into the universities until really about the mid 17 hundreds. One of our very first professors was William Blackstone, so we found a really a different development.

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It was a development that took place entirely within the courts, deciding cases, as the judges thought they should be best decided, not setting down any abstract rules of law by a group that was set aside to determine how the law should read. Does this common law first originate with the coming of the Normans under William the Conqueror at Hastings in 10.

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66. Yes, it really does. I remember when I had to learn all those dates back in grammar school at 10. 66 was a nice round number. I don't think I ever realized until I went to law school just how significant that date was. It is really the single most important date that began a tradition of law which has affected people throughout the world very much.

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Why did it happen with the coming of William? What was it about William or what was it about the events of his time that led to the creation of this whole new school of jurisprudence, I guess, is what you would call it. I think the single most important feature is that once William had conquered the island, although it was really more of a succession than a conquest because he believed he possessed greater right to the to the throne.

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And it, Harold, he had to centralise administration. He had duties back in Normandy. He had a very large amount of land and what is now France. And he had to pick loyal barons to help him rule the land. And he centralized everything around London around what is the City of Westminster, part of London today.

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And that meant that he combined and principally what he called the Curia. Regis is King's counsel what we would consider judicial, executive and legislative obligations. And it was then, from that centralization that the common law began to develop because he developed a series of courts, three principal courts and those courts dealt with matters of importance to the king.

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And he began a conflict that went on for several centuries with the rural courts. And as that conflict evolved, our common law began to evolve. I know that recently you went to England and took some videotape of sites, and if we could see a couple of those scenes, it would help us to appreciate the environment in which common law first took root and flourished.

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So if we could, uh, Mike, let's see what you have done. And I believe that this first tape, though it's a little grainy in quality, nonetheless gets across the message that you wanted. Six. Duke William of Normandy landed his force perhaps 10 to 12,000 men here at Pevensie in southeast England.

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It was the last successful invasion of the island. William could not have realized that his victory, the Battle of Hastings fought some half dozen miles from here would be the progenitor in the creation of a great legal tradition, the common law. It would become a tradition which would one day be distributed to a third of the world.

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The legal systems of Australia, of India, of New Zealand, of Canada and of the United States all have deep roots in English soil. Mhm secrets. All right, now, where was that again, Mike? Where were you seated exactly? That was right near Pevensie Castle. We all talk about the battle of Hastings.

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But the Battle of Hastings had little to do with Hastings. The William landed at Pevensie, a few miles to the west of Hastings, and then moved his forces inland when Harold had come back from the success over Harold Andrada at Stamford Bridge. Various, another pretender to the title and the battle was fought at Sunblock Hill, which was a bit north of there, which is now called the Town of Battle.

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And the battle was between which two forces Williams obviously on one side, and the opposing force was what led by Harold, who had both were related to the previous king, Edward the Confessor. Both thought they had a greater right to the title, and this was really the determination of who had that right.

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All right. And then we have the development of common law by the centralization of authority under William and his successors, and the particular law that was found in the rural areas coalesced into a kind of national law. If I understand you correctly, there is certainly some truth to the idea that rural law or customary law then became a part of the English law.

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But what we really think of as the English Common Law developed not in the rural courts but developed within the king's courts and certainly in the courts, as the King moved about with his itinerant form of justice. So it overwhelmed really, the particular really laws, it really did overwhelmed the powers of the sheriffs and the Shire and 100 courts.

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Now we have another videotape and let's watch that now, on Cesar's exploratory visits, he was less the conqueror than the discoverer of the island, lasted only a few months. Unable to land south of here, the South Foreland cliffs, he came onto these rocky beaches with his forces.

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A century later, Claudius brought Britain into the empire. For four centuries, the Romans brought with them a rule of law developed and refined over several centuries, though not yet to receive the lasting imprint of Justin Ian's famous codification. But the Roman legal system did not remain behind in Britain when the legions left.

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Why did not one of the truly remarkable contributions to prosperity the Roman law have a permanence here in this country and make the development of the common law unnecessary? It is for two reasons. First, the Roman law was for Romans, the use Seville applied to interactions between Roman citizens.

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Another the use gente, um, to free but non Roman citizens in the provinces. But the Romans did not attempt to displace local law based upon customs, and thus much of the mundane local conflict remained outside the local system imposed upon Britain. That answer is a very important question.

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Why did not the institution of Roman law such a civilizing influence throughout much of Europe, not take root and have permanent life in England, and you answer it by saying, Really, it was a law that govern the relationships between and among Romans themselves and had no place in the well the life of those whom the Romans had conquered.

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But when the legions left the Roman law left, that was also partially true in Europe to when the legions went back from the northern European areas and from France to help defend Rome against the Visigoths. Their legal system went as well. Uh, certainly they left a lot.

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They left the rose. They left the bagpipes. They left the road system central heating, which didn't come out again for a long period of time. And I think people always ask when they see the high level to which Roman civilization reached than in the 300 more or less 3 to 400 years they were there.

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Why didn't that legal system stay? It came back. It came back on the continent and it came back to a degree in England, but in a very, very minor way, and partially through canon law, you have three slides that show a little bit of the Roman culture.

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Let's show those now and then we'll show another tape. What do we see here, Mike? This is a Roman villa in about the year 70 a d, which certainly could be passed for something we would see now the next picture takes us inside to the dining room.

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And again, I think it's remarkable to think that well before the Middle Ages, people were living in conditions like this in England, the floors on the next slide, we're in a mosaic form, a considerable achievement of the Romans. All right, now we have a final tape of the three that we're showing on the program tonight.

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And what will this one show? This takes us to battle Abbey at the location near Sunblock Hill. In fact, we're standing right on Sunblock Hill, where they constructed in Abbey after William was successful, and this again discusses some of the reasons why the common law began at that particular time.

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Alright, let's run that tape now. When William conquered England, he did not, as the Romans had done a millennium earlier, bring a legal system with him to transplant to this island. There was, in fact, relatively little written Norman law, which could have been brought. How would one rule this newly conquered land without a large force to colonize it?

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And with Normandy still making considerable demands upon Williams time, William would leave the Anglo Saxon laws of England that aggregation of disparate local customs largely intact the first four centuries following the Norman invasion, more firmly established a permanent legal machinery, then had the Romans in a similar span of years.

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But had the Normans departed Britain, as had the Romans, can we say that the common law would have survived? What is the place now of the Magna Carta, which originates in 12, 15 or thereabouts at the time of the rebellion of the barons and of the clergy against King John King John?

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The second, as I recall, is not the Magna Cartas that charter that was exacted from John, also another stage in the evolution of the common law. It is. It's probably the first document that we look to to talk about constitutional history of England. I think most people don't realize that England has no written constitution.

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They think that since we have one in England must have one. But the Constitution of England is really an aggregation of a series of documents, and one of them is the Magna Carta. It really didn't have a great deal of impact in England until it became part of the testing of the common law under the Stuarts.

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At the time it was enacted, it was looked upon as a document of monumental self interest of the Baron's. There were no representatives there of the common folk. There were a few clauses that were placed in the in the Magna Carta that we look upon now as being important in terms of taxation and the role of the sovereign and the nation.

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But it was essentially two groups of people the barons who are concerned with King John and and King John squaring away and determining what turf they were going to each govern. Now there are a number of principles that are articulated very early on in the development of common law, and, um, we'll talk about them a little later.

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But first there are some more slides, and if you could take us through, these pictures will understand a little bit better about well, are we in Roman times again? We're on our way to the invasion this is from the Bayeux Tapestry, which is in Belgium. And this is the invasion fleet of William, who had to wait some days on the coast of Normandy waiting for a favorable wind.

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And this is his coming. The next of the slides shows what is thought to be the death of Harold. No one is really certain how he how he died but thought to be from an arrow on the next slide is one of the most important books we have in social history.

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It's the Domesday Book, which within 20 years of 10 66 there had been an inventory taken of every pig. Every cow, every farm, every fish pond in the whole country is a marvelous way to determine what you're going to tax. But it has brought to us a document very important in determining just exactly what life was like at that time.

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The next is a bust of Henry, the second, who was certainly one of the most important, uh, the Sovereign's in beginning to break down the relationship between the church and the state. The benefit of clergy, which allowed people to be sentenced in the ecclesiastical courts rather than temporal courts and of course, was Henry, who was believed to have ordered the death of Thomas Becket, whom he had appointed Archbishop of Canterbury.

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And the next slide shows the location in Canterbury Cathedral, where he is believed to have been murdered by three or four nights sent by Henry in that same church in the next slide of the very famous Beckett stained glass windows, which were not added to the church until the 13th century.

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From that point, we jump to the time that we were just talking about in the next slide, the bust of King John, and it was King John that was forced into the Magna Carta signing. In the next slide, we have a copy of a reissued Magna Carta, not one of the original ones.

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There are four original Magna Carta is left and their well preserved in museums, and on the next week have the interior of where the courts originally sat. This is Westminster Hall at Westminster Abbey, where we are more commonly know the House of Lords and House of Commons to sit.

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This looks exactly like it is today, and in that building, the early common law courts sat in the next we have. Well, I don't think that was on your original. So that's some other form of law, I'm sure. Corporate law, I suppose, Mike, as to the principles that are articulated very early on in common law, surely one which we hear much about his habeas corpus.

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But I wonder how many, including myself, really understand what habeas corpus is. Could you give a brief description of that principle? It comes from the writ of habeas corpus and the early Ritz, which developed at a very early stage in the development of common law, were the principal way in which the sovereign brought matters into the courts of the king.

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The writ of habeas corpus and several other Ritz directed to officials were brought in the King's Bench Court, one of the three, the King's bench, the Commonplace and the Exchequer Court that that allowed a good deal of matters to come in. And there were writs of Rip Levin and debt in new If you wanted your cow back, you gotta rid of Rip Levin.

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There's a very famous comment that where there is no writ, there is no right. If you didn't have a proper rip. You simply couldn't get something into court. But we developed a number of fictions for that. To get around that and to bring more into the court.

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That's really what led to the clash between the barons and the king. Right of habeas corpus is a rip to produce the body. That's a direction to an official. And now we see that being used principally and appellate very frequently in appellate criminal matters, ordering an official essentially to produce to produce the body.

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Does it relate only in homicide cases, or does habeas corpus have an extended meaning of the evidence produced the evidence? Well, it certainly had a much more extended meeting when it was when it was originally brought, it seems, now and then. I'm not a criminal criminal law lawyer, a specialist.

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Any means assume that it's mostly used in producing the body, producing an individual, not not a dead body. And the attorney hopes you can get to that point to produce the body before it is a dead body. Produce the person. All right, all right. I understand what is the writ of mandamus that also originates at this?

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It's another early order and it is another order ordering an official to take a certain kind of action. Then when an official won't, uh, the order will be do something which you are responsible for doing. The writ of trespass. Is this also an early ret? Yes.

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And unlike, uh, the the earlier risk which we would deal feel deal more with the public authorities of trespass is a early writ which from which much of our law of tort and contract development. So I think if one were to ask what were the most important Ritz to us today, one would certainly say the writ of habeas corpus on the criminal law side and the rid of trespass on the on the other side.

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The other routes were very narrow, and it tended not to develop the rid of debt in new rid of replacement did not develop as expensively as the rid of trespass did. Surely one of the most precious principles in American law and English law is that of trial by jury.

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One is to be judged by one's peers. This would seem to be something that common sense would arrive at in the historical development of jurisprudence and yet it comes out of English common law by some particular inspiration that happened in England at a particular given time.

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Uh, do you have an explanation for that? Or in searching the historical record? Do you know exactly how it came about? Well, we think we think we're fairly accurate and suggesting that at an early time, when an individual was accused of doing something, then he could have a series of oath takers who would come in people who knew him.

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Uh, they didn't know what happened, but they knew the person. They were really character witnesses. So he would have a group of those people come in and swear that this was the kind of person that would not do that, or that this was a person who did that in a particular non criminal matter.

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Ultimately, those individuals were people who began to become familiar with the matter. Then then we made a major break. It was no longer people that we're familiar with the matter, but they were simply one's peers, simply once, uh, colleagues than in a community. And from that we really have developed the trial by jury.

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It's been an enormously important development, although, as we seem to in so many areas in the United States, we've really gone overboard with it. If we compare it with the Common Law of England and the Common Law of England is very different from the, the English law is very different from the law.

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In the United States, the jury is rarely used except in cases of defamation. In civil trials, it is still highly prized and highly preserved for criminal matters. But even in the area of criminal matters, some 90 or 95% of all criminal matters are not tried before a judge and jury, but are tried before a magistrate.

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We know as the justice of the Peace a group of lay people in a community who have little legal training. Uh, they are often called the great unpaid and by others called the great unlearned. But these people do a great deal of the handling of the justice system, anyone and the right to a speedy trial.

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How did that originate? Well, it's that's I'm not sure we can trace origins of the right to the speedy trial, because we we bring that up in our constitutional context and There is no bill of rights in in England as we know the context here, and certainly one looking at the trials in England, it would seem to say that there's a good deal of delay.

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It is a very substantial delay, even in some of the criminal processes in England. But I think for the most part, the speedy trial concept has been something which we have developed and used much more as a defensive measure. Now, common law is also jurisprudence whereby judge and jury Certainly a judge makes or makes a decision based upon previous decisions or reports of previous decisions in similar or analogous cases.

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Isn't this correct? And that's true, And that evolved. The whole idea of the common law is an evolutionary process. One judges were making decisions on a particular set of facts. People were in the courtroom out of curiosity. Some people later began to write down what the judges were saying.

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They began to show that there are some threads that run through the decisions. Glanville bracket. In our early writers and people, people began to use these reports. I think it's only common sense for a judge to wonder what his colleagues have done and how they've decided a particular case and over a period of time that became more and more formalized.

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And we now have an enormous reporter system in this country and a very substantial one in England as well. And that really is what we call our precedent. That's the heart of the of the common law system. And rather than going, although legislation is very important, a judge in England doesn't feel comfortable with a new law until the courts have dealt with it.

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I think you feel less comfortable than a judge in this country. So the judge in England or a judge in France would go immediately to the code to look for something not to the cases. Cases might teach them something. But a legislative statute in our society has more force than a common law.

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Oh, yes, yes, it does. It has priority of a particular legislative act says something than that is what the law is. But there may be interpretations of that that over a period of time, substantially rest from that original thought much of what its meaning might have been.

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We talked about differences between common law in England and the United States today is common law, also found in Scotland. Scotland law is very interesting history because much of it is civil law. During the 13th and 14th centuries, Scotland, which was having difficulty with England, tended to align with the continent.

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And indeed, the incursions into into England by the Romans by William at a later time never went into the Scottish area with any permanency. So Scotland was able to develop a law. But after the act of union in 17 oh, seven, that brought joined Scotland with England, certainly for political purposes, many of the acts of parliament which there are Scottish members then apply both to England and to Scotland and Wales, of course.

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So we would expect to see common law and the former English colonies such as the United States, Canada, now a member of the Commonwealth of Australia, New Zealand, Ghana, Nigeria, India, India, my South Africa. Michael, thank you very much. This has been fascinating. And I thank you.

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Michael Gordon, professor of law in the College of Law at the University of Florida. Thank you, Mike, for being with me on conversations. I've enjoyed it. Thank you. Mm mm. Yeah,