October 1st 2012 is an important date in the legal profession of England & Wales. To begin with, it marks the beginning of the Michaelmas Law Term in England & Wales. Perhaps even more significant: today is the third anniversary of the Act of Parliament establishing the new Supreme Court of the UK (thereby superseding the historic function of the House of Lords). It is therefore fitting that my October Blog will examine the impact of Henry I’s reign on the development of English Common Law; particularly the important legal initiative: ‘The Laws of Henry I’.
This ground-breaking document, ‘’Leges Henrici Primi”, was written about 900 years ago, in the second decade of Henry’s reign. It clearly drew on legal innovations outlined in Henry’s ‘Coronation Charter’ of 1100; but the Charter had been primarily designed to attract support for Henry’s new regime. In contrast, the Leges was more concerned with the actual advancement of the Law: it was to be a indispensable staging post in the evolution of English Common Law.
Impact of the Leges on English Common Law.
(1) The Leges formalised the Anglo-Saxon ‘Two-Tier’ System of Law Courts: Shire Courts for serious offences and Hundred Courts for lesser offences.
Clause VII(i) stated that: ”the general plea of the shire court shall be held at the recognised terms and times throughout the different provinces of England.”
Clause VII(iv) stated that: ”The shire moot and the borough moot ought to meet twice a year; and the hundred moot and the wapentake moot twelve times a year.” (All direct quotations from the Leges are taken from EHD, Volume II, pages 491 to 495). The Shire and Borough Moots approximate to our Crown Courts. The Hundred and Wapentake Moots roughly correspond to our modern-day Magistrates’ Courts. However there is at least one major difference between the 12th century Hundred and Wapentake Moots and today’s Magistrates’ Courts. There are about 350 Magistrates’ Courts in England & Wales in 2012. Nine hundred years ago, there were possibly as many as 600 Hundred and Wapentake Courts in England (reflecting the obvious difficulties in travel in 12th century England). The ‘Hundred’ was the basic Anglo-Saxon unit of local government. The ‘Wapentake’ was the basic unit of local government in what had been the Danelaw. As Professor Bartlett has pointed out, the Leges actually defined England, it stated: “The Kingdom of England is divided into three parts, Wessex, Mercia and the Danelaw.” (Quoted by Robert Bartlett, in his ‘England under the Norman and Angevin Kings,’ OUP (2000), page 155). What is impressive is that our modern Law Terms are still standardised throughout England (and also in Wales). What is also impressive is that the Danelaw was still recognised as a separate entity in England as late as the early 12th century. The Danelaw was established as the Viking half of England in the late 9th century.
In the early 12th century, when referring to the Danelaw (or Denelaga), the Leges effectively meant Northern England (from Lincolnshire northwards). When referring to Wessex (Westsexenlaga), the Leges effectively referred to Southern England (including London). When referring to Mercia (Merchenlaga), the Leges effectively meant what is now Central England.
(2) A key element in any formal legal system is the ‘Right of Appeal’: it is an obvious safeguard against the arbitrary use of the law. It was the Leges that contained one of the first written references to appeal procedures in England.
Clause XXXI(iv) stated that: “No man may dispute the judgement of the king’s court, but it shall be permitted to men who have knowledge of the plea to appeal against the judgement of other courts.” What the Leges seems to be implying is that the King’s Court might well be the final Court of Appeal. (Shades of our modern Supreme Court?)
(3) It would of course be stretching incredulity to suggest that the Leges was an exact blueprint for our present day legal structure. For example, the author of the Leges deliberately wrote into the Leges a formal assertion of the legal rights of King Henry’s Tenants-in-Chief.
Clause LV(i): “Every lord is allowed to summon his men, so that he may do justice upon them in his court. If the man be resident in a manor far from the honour from which he holds, he shall none the less go to the plea if the lord summon him.”
The concept of a ‘summons’ is of course familiar to legal systems; but Clause LV explicitly allowed the Tenants-in-Chief to have their own courts, called Honor Courts (a Norman innovation). Such private courts would of course be unthinkable in any modern democratic legal system. Even so, as Professor Bartlett has demonstrated, the Leges contained checks against ‘overmighty’ Tenants-in-Chief, as Henry I forbade ‘building a castle without permission.’ (Bartlett, page 279). This prohibition was an effective safeguard against ambitious Tenants-in-Chief. In any case, these ‘Honorial ‘ or ‘Seignorial’ courts did not really take root in 12th century England. The Anglo/Saxon ‘two-tier’ system of shire and hundred courts remained pre-eminent in 12th century England, thereby bequeathing a two-tier court system to us.
(4) Any progressive legal system has to differentiate between categories of crime. This is where perhaps the Leges made its most important contribution to the maturation of English Common Law. Professor Judith Green has argued that the Leges certainly did effectively identify different categories of crime.
Serious crime included rape & abduction, arson, robbery, treachery and murder. Lesser crimes included breach of the King’s Peace and contempt for the King’s Writs. (Judith Green, ‘The Government of England under Henry I’ (1989), page 102). The categorisation of rape & abduction as serious crime must have represented a real progression in the position of women in 12th century English society. One wonders if Henry’s Consort, Queen Edith Matilda, was involved ‘behind the scene’ in the implementation of the latter measure..
The pronouncement of The Laws of Henry I, around 1115, was a turning point in the evolution of English Common Law. As Professor Judith Green has pointed out, attempts to formally inscribe English Law had largely been dormant since the reign of Cnut (1016 to 1035): “it was re-born in the early twelfth century under a king whose reign became a byword for the rule of law.” (Judith Green, ‘The Government of England under Henry I’ (page 99)). Professor Green says it all: every one of us owes a great debt to King Henry I. Today, in 2012,, we must ensure that we do not, by default, erode the legal heritage bequeathed to us by ‘The Lion of Justice.’
Just over 800 years ago, the 1st October was a dynastically significant date. Why?