Forgery and the Literacy of the Early Common Law

Abstract

The birth of the common law in medieval England has given rise to a long paternity suit. Too often most of the credit is given to Henry II and his advisers burning the midnight oil crafting assizes for the governance of the realm. Here, the king created something new: a system of royal justice, namely the king's court at the Exchequer and the eyre, in which justices passed judgment based on common rules and kept records of their proceedings. The problem with this picture is that it forgets that, when Henry and those advisers sprang to the task at hand, constructing a royal law for the entire realm, the tools they needed for the task were already in their hands. The county courts, for example, on which Henry II's extension of royal jurisdiction over seigneurial courts depended, were in place and eager to administer royal laws. The Anglo-Saxons had set up these shire, as well as hundred and wapentake, courts long before, in the tenth and eleventh centuries. Almost as important, the literacy that Henry must have relied on to communicate his orders to the Exchequer, eyre, counties, hundreds, and wapentakes was ready and waiting. This legal literacy, in fact, should be considered the sine qua non of the common law, for without it, the centralization of the courts, which was the catalyst for the emergence of the common law, would have remained a royal fantasy. From where did the extensive literacy of the late twelfth-century kingdom come? Without an answer to the question of how the late twelfth-century kingdom had become so literate, the explanation of the development of the common law, dependent as it was on its rolls and writs, is sadly incomplete.