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?

Civil Law and the individual: What we all owe to Henry II . . .

Today, Monday 3^rd October 2011, is an especially propitious day. To begin with today will see the admittance and licensing as a Reader in the Anglican Church of my wife. Proof positive that I am magnanimous enough to overlook the Church’s error as regards its attitude to Becket! Today also marks the start of the Michaelmas Law Term in the two UK countries most strongly influenced by the Common Law: England & Wales. Today is therefore a timely reminder what we all owe to King Henry II.

I have already described Henry II’s contribution to the development of criminal law in my February 15th Blog: the Assize of Clarendon. I have also analysed the vital nature of Henry II’s Inquest of Sheriffs in my March 30^th Blog. The latter measure, by asserting the primacy of the government over the principal law officers, struck a powerful blow for freedom from tyranny. The recent political exchanges between government ministers and senior police officers in the wake of the August urban riots have reminded us how vital it is that the legal government must, if necessary, assert its primacy over the law-enforcement officers. Even so, if Henry II and his government officials had been exclusively concerned with the criminal law and the law-enforcement officers, then Henry II’s contribution to the common law would not have been so important. What sets Henry II apart is that his reign also witnessed significant developments in civil law.

• Hopefully, very few of us will be involved in criminal law proceedings, either as the perpetrator or as the victim of crime. In contrast, probably all of us will be involved in the civil law at some stage in our lives: perhaps buying a house, or making a will. When we engage in either of these two legal activities, we shall be effectively engaging in a statutory process inaugurated by the Angevin Regime over eight hundred years ago. The two key Angevin measures affecting the development of the Common Law were the Assizes of Novel Disseisin and Mort d’Ancestor.
• Before I proceed further, some explanation of medieval terminology is required. As I may have explained before, an ‘Assize’ was a royal edict (or pronouncement), made by the monarch and his officials, usually in conjunction with the tenants-in-chief. Such ordinances then effectively assumed the force of law. The term ‘assizes’ survived in England & Wales until forty years ago, when the 1971 Courts Act abolished Assize Courts, replacing them by ‘Crown Courts’, in the process discarding the experience of eight hundred years of our history. The term ‘seisin’ meant feudal possession, and, over the course of time, was effectively transformed into what we would now recognise as freehold possession.
• Precisely dating both Assizes of Novel Disseisin and Mort d’Ancestor is difficult; the late Professor Warren, whose magisterial biography of Henry II was published in 1973, dates both these Assizes at about 1176. He partly arrived at this date by a process of elimination. There seems to be no legal process involving ‘Novel Disseisin’ before the first Judicial Tour of England after the Great Revolt of 1173 to 1174. This judicial tour was commissioned in January 1176; but the term Novel Desseisin appeared soon afterwards. However, the editors of Volume II of the equally magisterial ‘English Historical Documents would disagree on Warren’s dating. They agree that Novel Disseisin does appear in the 1176 Assize of Northampton, but feel that it may have appeared ten years earlier, in the 1166 Assize of Clarendon. The editors of EHD agree with Warren on dating the Assize of Mort d’Ancestor in 1176. It would therefore seem to be the case that King Henry II’s great law reforms all occurred in the period 1166 to 1176, which must therefore rank as one of the greatest decades of reform in the entire history of the UK.

Assize of Novel Disseisin

This epoch-making measure sought to redress the grievances of anyone illegally deprived of their freehold. It involved the inter-play of monarch, sheriff, justices and jury; in addition to the two contending parties. A good description of this procedure is outlined in a famous legal treatise of about 1189, called: “Concerning the Laws and Customs of thye Kingdom of England.” This treatise is usually ascribed to Rannulf de Glanville, Henry’s justicar between 1180 and 1189 (though the authorship is still disputed). Clause XXXII, Book XIII, stated that when anyone unjustly dispossessed another of his freehold, the injured party could now obtain a Writ in the King’s Court, phrased as follows:-

“The king to the sheriff greeting. N has complained to me that R has unjustly and without a judgement dispossessed him of his free tenement in such-and-such a village since my last voyage into Normandy; therefore I command you that, if the aforesaid N should make you security for prosecuting his claim, then you shall cause possession of that tenement to be restored to him, together with the chattels taken on it. And you shall cause the tenement with the chattels to be in peace until the Sunday after Easter, and in the meantime you shall cause twelve free and lawful men of the neighbourhood to view the land, and have their names enrolled. And summon them by good summoners to appear before me or my justices prepared to make the recognition. And put R (or his bailiff, if he cannot be found) under safe pledge to be there at that time to hear such recognition” [Quoted in EHD, Volume II, page 509].

What a wonderful document! The late Professor Warren regards the Assize of Novel Disseisin “to be of crucial importance in the history of the English common law.” (See his ‘Henry II’, Yale University Press, new edition, 2000, page 337). Of course, he is correct in this view. No longer could some bullying baron ride roughshod over the legal rights of modest landowners. The sheriff had to see that landowner’s rights were protected, and the jury was to see that justice was done. Doubtless there were still anomalies involving land ownership, because no system of law is perfect (even our own!); but a major step had been taken in bringing about legal equity. At the same time, there was now a clear incentive for a dispossessed individual to seek legal redress through the courts, rather than resorting to direct action themselves, a mark of an enlightened legal system.

Assize of Mort d’Ancestor 

This reform gave legal protection to deprived heirs. The legal heir to a deceased landowner could now obtain his father’s estate if he could prove (a) that his father was legally possessed of the freehold at the time of his death and (b) the claimant was actually the legal heir of the deceased. Where there were several claimants to the freehold, and one of them had, perhaps illegally, taken passion of the freehold, the other heirs could now obtain a writ in the manner of Novel Disseisin, in which case the sheriff would summon a jury to decide the matter. At the same time as adjudicating between rival claimants, Mort d’Ancestor anticipated the present day legal arrangements on intestate estates, because if there was only one heir to an estate, then the heir would receive it, on the basis of (a) and (b) above. Once again, this Assize was a breakthrough in the development of common law in England.

Conclusion

We all now live in a nation increasingly dominated by statute law, much of it emanating from the European Union. In this process of legal transformation, the common law has inevitably become less relevant. There is probably little point in bewailing such a legal metamorphosis, as change is the life-blood of human society. Nevertheless, the progressive erosion of common law procedures within the UK in no sense diminishes King Henry II’s achievement. Building on the groundwork of his grandfather King Henry I, Henry II and his officials constructed a cohesive system of law in England. It was a magnificent achievement, marvelled at by generations that followed. Today marks the start of a new law term in England & Wales. One trusts that our present-day servants of the law, in whatever capacity, will imitate their Angevin predecessors in assiduously discharging their legal responsibilities.