Category Archives: Sex discrimination

The Laws of the Lion of Justice: 1115

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..

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 1st October was a dynastically significant date. Why?

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Proto-Feminisn in 12th Century Western Europe: This is Your Life ; Eleanor of Aquitaine, c1124 to 1204

This week, I am offering my readers a supermarket ‘Three for the price of One’ offer. My first two  entries this week have been on a major battle (Towton), and English Common Law (Inquest of Sheriffs). By way of contrast, I shall now analyse the political impact of a major 12th century ruler: Eleanor of Aquitaine. Today, 1st April 2011, is the 807th anniversary of the death of this great queen.

Eleanor’s political career lasted from 1137 to 1204. Her political tenure lasted an extraordinary 67 years! This would be remarkable in the 21st century, let alone during the medieval period. It encapsulates many of the great political events of the 12th century; but it is as an early force for feminism that Eleanor of Aquitaine should perhaps be best remembered.

  • Eleanor was probably born in 1124 to William, 10th Duke of Aquitaine, and his wife Alienor. The aristocratic couple had two other children, a son, William, and a younger daughter, Petronilla. The young William sadly died in childhood, but this was a boost for Eleanor, as it meant she was the heiress to the vast Aquitaine dukedom, on the death of her father in 1137.
  • Eleanor’s wealth would make her a very desirable match in the 12th century aristocratic marriage market, and one would have thought that Eleanor would have settled down to the life of a dutiful, but essentially submissive, wife of a major ruler. This was not Eleanor’s view of her destiny: she was determined to assert her own authority, and in so doing, she would be adopting what we now recognise as a feminist stance. Eleanor demonstrated her independence of spirit by marrying King Louis VII of France in the same year as her father’s death. The royal couple had two daughters, but no sons. They divorced in 1152, and conventional wisdom has it that Louis ‘The Pious’ initiated divorce proceedings because Eleanor had not born him sons. This has a ring of truth, as it reflects that king’s piously sanctimonious attitude; but one feels that Eleanor herself was tired of her holier –than-thou husband, and wanted to follow her own political ambitions.
  • Once again demonstrating her vigour, Eleanor married Henry, future King of England, immediately after her divorce in 1152. Their marriage was to be one of the cornerstones of the mighty Angevin Empire. The royal couple had a large family – four sons and three daughters.  This dynastic success helped stabilise Henry II’s rule in England; yet Eleanor did more to assert herself than simply by guaranteeing the Angevin succession. Eleanor acted as Henry’s Regent, helping him to govern his vast empire, especially in the first twenty years of Henry’s long reign. As Queen of England, Eleanor issued writs to the sheriffs, and collaborated with Henry’s justicars (notably Robert Earl of Leicester, and Richard de Lucy). Nor was Eleanor’s political authority confined to England. After the birth of her final child, John, in December 1167, Eleanor governed Aquitaine virtually single-handedly till 1174. One can only regard Eleanor in these years as a dynamic medieval ruler, in no sense subordinate or deferential to a patriarchal political structure: in short, the very epitome of political feminism.
  • Virtually all rulers make at least one mistake. Even Henry II himself made errors in handling Becket; but Eleanor’s major mistake was to affect her fortunes more severely.  Eleanor gave excessive support to her sons in their rebellion against their father Henry II (Eleanor’s husband) in the Great Rebellion of 1173-1175. Henry showed real leadership qualities, both in crushing the rebellion, and then displaying magnanimity to his former enemies in the aftermath of the Rebellion. Unfortunately, Henry’s generosity did not extend to his wife, and Eleanor spent the rest of Henry’s reign under virtual house arrest.
  • Fifteen years incarceration would have dampened the political spirit of most medieval rulers; but Eleanor was made of sterner stuff. When Henry II died, in 1189, Eleanor emerged from her political confinement to assist her son,  King Richard I. Eleanor was effectively ruler of the vast Angevin Empire between 1189 and 1194, while Richard was absent from the Angevin Empire, both on the Third Crusade, and during his  subsequent imprisonment. At the mature age of 65, Eleanor took up the ‘reigns’ of government. As Vicereine of the mighty Angevin Empire, Eleanor had a new seal struck, describing herself as ‘Queen by the grace of God’. Queen Eleanor issued charters, with a ‘civil service’ chancellery of at least half a dozen clerks. This was political feminism , not just in theory, but also in practice. Eleanor’s personal courage matched her political mettle. In the winter of 1194, when she was 70 years old, Queen Eleanor made the  arduous journey to Cologne, with her justicar, Archbishop Hubert Walter, to pay the first ransom instalment to the greedy Emperor of Germany, to release her son King Richard I from his captivity.
  • When Eleanor finally died, at the elderly age of 80, on 1st April 1204, the Angevin Empire lost a worthy heroine. It is no accident that the Angevin Empire disintegrated within ten years of Eleanor’s death; yet few issues are clear-cut in History. Eleanor’s queenship may not have ensured the long term survival of the Angevin Empire; but it did ensure that feminism would endure over time, even within an essentially patriarchal political structure. One feels that Eleanor would have been pleased to have bequeathed such a political and social legacy to posterity.
  • For those interested in finding out more about Eleanor, I would recommend Professor Ralph Turner’s recent biography: Eleanor of Aquitaine, published by Yale University Press, (2009).
  • Finally, as usual, I shall conclude this blog with a question (though this time there will be no prize!) I have written this blog on 1st April, because that is  the day and month when I think that  Eleanor of Aquitaine died. What is the alternative date for her death?

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