Steadfast
Contents - issue 17 Summer 2006

Steadfast Demo
England: the mother of modern sport - Robert Henderson
Letters
Progress for the English Community - Tony Linsell
Birds of the Seashore - Edward Canfield
The Legacy of William Barnes - Don Briggs
Law & Democracy - Lawrence Middlehurst


Law and democracy - the English way
Lawrence Middlehurst - Part Two

The Norman Conquest was an unqualified disaster for the English people. Everyone took at least one step down in status, with all the economic hardships which that implied: English nobles were deprived of their lands which were given to the Conqueror's followers as their reward for their part in William's 'enterprise'; the ceorls were reclassified as serfs together with freed slaves. But the radically altered situation of English womenfolk offers one of the most dramatic illustrations of the general loss of status and freedom for the English.

In his Decline and Fall of the Roman Empire Gibbon remarks of Continental Germanic womanhood: "The Germans treated their women with esteem and confidence, consulted them on every occasion of importance…respected them as the free and equal companions of soldiers." This did not change with the settlement of England and was the same before the Normans came. A tiny but significant indicator of the equality of the sexes is the Anglo-Saxon word 'mann'; this meant not 'a person of the masculine sex' but simply 'a person' whether male or female. This makes nonsense of the current fad for the ugly and ungainly word 'chairperson' since that is what a chair-mann already is.

Women in Old English times could own their own properties, run businesses, represent themselves in court and divorce unilaterally, the latter at least until the Christian church forbade it, though whether all English men and women obeyed the church in this is open to question. Many of the old traditions, including the right to divorce, were upheld in Danelaw.

Under Latin-derived Norman culture and law, which is often mistakenly thought to be superior to pre-conquest English culture and law, Englishwomen not only lost these freedoms but were treated in law as chattels. (Revealingly the word chattel is derived from the Latin root for 'cattle'.) Even the richer women were, in effect, auctioned off as wives to the highest bidder who coveted the estates they would bring with them. Thus England's womenfolk lost freedoms which they did not start to regain until the end of the 19th century and the reform of marriage and property laws.

Such was the weight of the Norman yoke on English necks but, like much else of native culture, the principles of English law and ideas of freedom and democracy were to survive several centuries until they reasserted themselves.

Survival
"They (the Normans) had but little if any written law of their own; in this respect they were far behind the English." So says the great historian of our constitution F.W. Maitland in his 'Constitutional History of England'. William the Conqueror did, nevertheless, have a permanent and wide-ranging effect on our laws and government, although he at first sought to win support and secure the throne by appearing to want continuity of laws and customs. To this end he took the same oath at his coronation that his predecessors had taken and in doing so promised to rule as others had done before him. He made this promise not out of good will towards his new subjects but out of self-interest. His claim to the throne was at best tenuous, being through his father's sister who had been the mother of Edward the Confessor.

One of William's early innovations was the coutrywide use of 'inquisitorial' juries. These were not the juries we know today but bodies of twelve men charged with obtaining information about William's newly acquired lands. This information was compiled in what we now call the 'Domesday Book', which was put together in two years. In both its vast scope and the short time in which it was completed, it was a feat not equalled anywhere in Europe until the nineteenth century - an astonishing achievement, not for William but for the sophisticated English 'state' and the king's writing-office which he had inherited.

He also inherited and kept in use almost all of the administrative machinery of pre-1066 England. In addition to their legal function, the local hundred and shire system of courts were of fundamental importance as centres of financial, military and governmental administration. The Witan seems to have been quite quickly replaced by the 'Curia Regis'(King's Council), a much smaller body comprised mainly of the new king's friends and relatives.

All the same, William was now a king of England and ruled, for continuity's sake, in the English manner. 'Form' was all: he set out to give the impression that he ruled by the advice and assent of his barons as previous kings had ruled by the advice and assent of the Witan. Another precedent, based on English practice, had been set so that one day the spirit of the Witan would animate a new body, Parliament.

The First Two Henrys
If we exclude the undemocratic developments of the last thirty years - undemocratic because they were forced on our people, without even consulting them, by Euroland in collusion with a succession of weak-kneed home-grown governments - there has been no period of faster change in English law and government than there was between the beginning of the reign of Henry I (1100-1135) and the end of the reign of Henry II (1154-89).

This rapid development was founded on English institutions, laws and ideas. Henry II in particular made shrewd and novel use of the Anglo-Saxon 'building materials' he found. An example would be his use of the Old English concept of 'The King's Peace' to extend his own power and curb that of the restless Anglo-Norman barons.

By Norman feudal custom every baron was entitled to hold his own 'manorial court' of law; even some hundredal courts had fallen into their hands. The profits of justice - fines taken for a range of offences - were considerable. Henry II wanted those profits for himself. One of the means he used to get his way was to reinterpret and stretch the idea of 'The King's Peace'. In Anglo-Saxon times this had simply meant committing an offence within the king's presence - disturbing the peace of his household. Henry claimed that a whole range of offences committed anywhere in England constituted breaking the king's peace for they were committed on his property, England itself.

Henry II also re-jigged the court system, using the existing network but appointing his own itinerant justices to preside over the courts. These men had trained in his household and represented his interests. Such justices had first been sent out, though only occasionally, by Henry I.

Next he needed to pry suitors away from the barons' courts. He did this in two ways. Firstly he used the Anglo-Saxon writ: any man claiming he could not get justice from his manorial lord could have a king's writ issued demanding his release into the king's courts. This was the stick with which to beat the barons. The carrot dangled before potential suitors was a device claimed by the king as his exclusive prerogative - the jury.

The precedent for the use of the jury lay in the Conqueror's time but by now they were not inquisitorial juries of the type suited to gathering information but 'juries of presentment' in the manner of the Danelaw: these comprised nominated groups of twelve charged with apprehending offenders, collecting evidence and presenting both to the court. It was an improvement on the use of oaths and ordeals in that it offered a fairer trial for those able to pay the necessary fee.

Thus did Henry get his money and curb the barons. He limited their power further by appointing most of his officers out of the lesser baronage as Henry I had done. These new men were dependent on the king's patronage and could be dismissed at a moment's notice. This was particularly the case with the sheriffs who were rotated from county to county to ensure whatever powers they had over matters of finance, administration and justice could not become entrenched or corrupted.

In this period we see for the first time since 1066 the re-emergence of a system of checks and balances that is one of the outstanding features of law and government in England. In its rudimentary form it consisted of:- King's courts versus barons' courts; a central system of juries and writs v baronial law-giving; dependent king's officers v the barons; the king himself v all of them. From this evolved a system of law and government which prevailed until the comparatively recent transfer of law making and judicial powers to the EU.
Juries - The political and democratic dimension.

The popularity of the jury grew rapidly, helped on its way in 1215 by the Church's ban on the use of the ordeal. In the course of time - probably in the thirteenth century - the 'jury of presentment' became the 'jury of recognition' - a body made up of those who knew the contending parties in a given case and who could bring first-hand knowledge to bear. The 'jury of recognition' by degrees became the 'jury of bystanders', strangers who came to a case without preconceptions, thereby introducing the element of impartiality into proceedings - that element which we most value in a jury today and which is the best guarantee of a fair hearing.

Juries became judges of probabilities; contending lawyers for each side constructing an interpretation of events which incorporated the known facts, with the judge as 'umpire'. Most important of all: the jury eventually came to be regarded as the voice of the common English people. A jury could influence the law by disregarding aspects of law that conflicted with notions of natural justice: for example they might see that a defendant was technically guilty according to a given law but also believe the law in question to be unjust. In this situation they were at liberty to bring in a 'perverse verdict', setting the defendant free and taking the first step towards abolishing an unjust law. Thus the jury system enables 'the people' to challenge the power of the state. In this sense the jury system represents an English form of justice and is a model for the English style of democracy

 

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