The Laws of the Lion of Justice: 1115

October 1^st 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 12^th 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 12^th 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 12^th century.  The Danelaw was established as the Viking half of England in the late 9^th century.

In the early 12^th 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 12^th century England. The Anglo/Saxon ‘two-tier’ system of shire and hundred courts remained pre-eminent in 12^th 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 12^th century English society. One wonders if Henry’s Consort, Queen Edith Matilda, was involved ‘behind the scene’ in the implementation of the latter measure..

Conclusion

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.’

Question

Just over 800 years ago, the 1^st October was a dynastically significant date. Why?

Sibling Strife Part 2 : King William II and King Henry I: August 1100

The second part of my Trilogy on Henry I’s Accession and Retention of Power takes us back from July 1101 to August 1100. Picture the scene:-

•  It is the afternoon of 2^nd August 1100. King William II (the second son of King William the Conqueror) is out hunting in the New Forest, accompanied by several magnates. He is in his mid-forties, quite healthy (having survived serious illness in 1093). Towards the end of that August day, tragedy struck King William. Let a contemporary chronicler, the reliable William of Malmesbury, tell us what happened next:

“The sun was now setting, and the king drawing his bow let fly an arrow which slightly wounded a stag which passed before him. He ran in pursuit, keeping his gaze rigidly fixed on the quarry, and holding up his hand to shield his eyes from the sun’s rays. At that instant Walter {Tirel}, forming in his mind a project which seemed good to him, tried to transfix another stag which by chance came near him while the king’s attention was otherwise occupied. And thus it was that unknowingly, and without power to prevent it (oh, gracious God!), he pierced the king’s breast with a fatal arrow. “[EHD, Vol II, page 318].

• At the time of his brother’s death, Henry was conveniently close by. He immediately galloped to nearby Winchester to get control of the important castle and the royal treasure. Henry was out to get the throne: this was his golden chance for power, while his elder brother (Duke Robert of Normandy) was still involved in the First Crusade. Possession of the important city of Winchester would clearly strengthen Henry’s claim to the English Crown. Having secured some baronial support for his monarchical coup d’état, Henry then continued his energetic pursuit of the Crown by quitting Winchester and, with a few baronial companions, riding post haste to London. It is possible that Henry covered the 70 miles to London in 24 hours (arriving in London on the evening of 4^th August). And so it was that Henry was formally crowned King Henry I of England on the next day, 5^th August 1100.
• The speed of the political events, over the four day period 2^nd to 5^th August, was amazing: it fuels speculation that maybe there had existed a planned assassination attempt against King William II. Most historians dismiss this conspiracy theory. They see William II’s death as simply a tragic accident, caused by a series of chance events, such as the dazzling effect of the setting sun, William’s partial wounding of his quarry, and Tirel’s bow shot whilst William II was preoccupied. Such an interpretation is supported by William of Malmesbury’s own judgement that Tirel ‘unknowingly’ killed the king. However, Professor Judith Green, in her excellent recent biography of King Henry, considers that: “a conspiracy to murder Rufus involving Henry, Walter Tirel and the Clares {a powerful baronial family} is…… not out of the question.” {Henry I, by Judith Green (2009), p.40, CUP}. Walter Tirel’s later actions are certainly suspect. Describing Tirel’s reaction to King William’s hunting accident, William of Malmesbury dryly observed, “Walter immediately ran up, but finding the king senseless and speechless, he leapt quickly on his horse, and escaped at full gallop.” [EHD, Vol II, page 318]. It could be argued that Tirel’s flight was simply the result of fear. A possibly more convincing explanation is that Tirel made sure that William II really was dead, and having ascertained this fact, he immediately ensured his own escape.
• Whether or not King William’s death in the New Forest was the result of accident or design, Henry would have to make some immediately important political gesture to shore up his new monarchical regime. It was therefore no accident that Henry’s Coronation on the 5^th August (by Maurice, Bishop of London) was accompanied by King Henry I (as he now was) issuing his celebrated ‘Coronation Charter’. This Charter remains virtually unknown to today’s general public (unlike the 1215 ‘Magna Carta’). Yet King Henry I’s Coronation Charter of 5^th August 1100 (exactly 912 years ago today) was a very important medieval document: so significant was Henry’s Coronation Charter, that it was re-issued by King Stephen in 1135 and King Henry II in 1154. It was even cited by Archbishop Stephen Langton in 1215 as a precedent for Magna Carta. Indeed, certain of its provisions (especially those dealing with women) are still relevant today.

King Henry I’s Coronation Charter, 5^th August 1100.

As Professor Green and other historians have pointed out, many of the Charter’s Fourteen Points were not entirely new. [See Judith Green, ‘Henry I’, pages 45 to 49]. Even so, some of the specific details enshrined in the Coronation Charter were novel.

Clause 1By this Clause, Henry promised the Church that he would “neither sell or lease its property; nor on the death of an archbishop or a bishop or an abbot will I take anything from the demesne of the Church or from its vassals during the period which elapses before a successor is installed.”

Clause 2 concerned the succession of heirs to the estates of their fathers; and the inheritance tax (‘Relief’) they would have to pay to the Crown. Henry promised that such ‘reliefs’ would only be “Just and Lawful.”

Clause 3concerned both the marriage of aristocratic female heirs and the rights of widows. Regarding the childless widow of a tenant-in-chief, Henry stated that, “she shall have her dower and her marriage portion, and I will not give her in marriage unless she herself consents.”

Clause 4 further stipulated the rights of widows and their offspring: “If a widow survives with children under age, she shall have her dower and her marriage portion, so long as she keeps her body chaste; and I will not give her in marriage except with her consent. And the guardian of the land, and of the children, shall be either the widow or another of her relations, as may seem proper. And I order that my barons shall act likewise towards the sons and daughters and widows of their men.”

Clause 5gave a warning to counterfeiters of the coinage.

Clause 6 Henry promised to forego most of the debts owed to his late brother, King William II.

Clause 7 concerned intestate estates of the barons For those of Henry’s barons who died intestate, “his widow or his children or his relatives or one of his true men shall make such division {of the movable property} for the sake of his soul, as may seem best to them.”

Clauses 8 to 10dealt with various matters concerning the barons, such as the Law of the Forests.

Clause 11concerned the feudal obligations of the Knights (lesser tenants): “The knights, who in return for their estates perform military service equipped with a hauberk of mail, shall hold their demesne lands quit of all gelds {taxes} and all work.”

Clauses 12 to 14were general statements, including a pledge to keep the peace, and restore the law of the Anglo-Saxon King Edward the Confessor.

{See EHD, Vol II, pages 432 to 434 for full details of King Henry I’s Coronation  Charter}

Interpretation of King Henry I’s Coronation Charter: Cunning or Commendable?

The Charter was a mixture of both. On one level, Henry’s Coronation Charter was clearly an ingenious device to win support for his royalist coup d’état. In the words of the famous BBC character Baldrick, King Henry I ‘had a cunning plan’ to win support from those sections of English society whose support was vital to any monarch: the Church, Tenants-in-Chief, and the Knights. In this sense, the Charter was simply a Political Manifesto, intended to help Henry defeat his elder brother’s opposition to his accession to the English Throne. The reference to the Knights (Clause 11) is especially significant. By giving the knights the privilege of tax exemption, Henry I attested his faith in the military organisation of the ‘Feudal Levy’ (Servitium Debitum), by which Henry I could nominally count on 5,000 knights to aid him in a crisis.

However, what is also striking is the rights King Henry I accorded to women, especially widows (Clauses Three, Four, and Seven). Such repeated assertions of the rights of widows almost implies that the Coronation Charter was a ‘Medieval Feminist Proclamation’. In this sense, the Coronation Charter certainly was commendable, because there was little political reward for Henry in making such ‘suffragist’ declarations.

Conclusion.

In promoting his Coronation Charter, Henry I had made a good start in rallying support. He made another politically astute move three months after the promulgation of the Coronation Charter, by marrying the Anglo-Saxon Princess, Edith Matilda, on 11^th November 1100. Edith Matilda was the daughter of King Malcolm III of Scotland. By her mother, Edith Matilda was also the great grand-daughter of the Anglo-Saxon King, Edmund Ironside. By his marriage, Henry I probably also gained the backing of the Anglo-Saxon population In England, as well as the friendship of Scotland. Even so, would all these plus points help Henry I withstand the expected challenge to his Crown from his elder brother Duke Robert of Normandy?

Sibling strife was a potent factor affecting relations between Henry and Robert (and also William II). In acceding to the English throne in August 1100, Henry had thrown down the gauntlet to his brother Robert (perhaps literally)! Duke Robert picked up the gauntlet and invaded England in the summer of 1101. What happened next? See my July Blog for details!!!!

Question

King Henry’s Coronation Charter of 5^th August contained 14 Points. Which other important historical political charter also contained 14 Points? (Clue – think 20th century.)