A brief history of the common law before magna Carta.
LIBERTY! THE TIMELINE
In the Middle Ages Brits live in a country of forests, farms, and small towns. Horses and dogs are their companions. Sailing the sea or riding, Brits feel mobile and free. These experiences spur their love of liberty.
They end slavery, and establish one of the most powerful ideas in the history of freedom – that no one is above the law, not even a king.
MURDER, MUSCLE PRINCIPLE &
1100 HENRY I FORCED TO SUPPORT CHARTER OF LIBERTIES
Ironically, William the Conqueror had to turn to the old legal constitution of England to control his army and nobles. He retained the local courts of the hundred and the shire, where every free man had a place, brought these under the jurisdiction of the King’s Court, hired his own sheriffs, and made certain that every tenant swore loyalty to his local lord and to him. He introduced the “fiction of tenure” – that all land tenure depended on the king whose subjects held their lands only because he allowed them to – and memorialized his ownership in the Domesday Book. Showing an efficiency that eludes modern bureaucrats, William’s men fanned out across England and made exactlngly clear in the Domesday Book what he owned – everything from castles to duckponds. In return, William enforced order, and made the roads safe. His son the Red King is a very different man. William Rufus owns all that his father owned, but his robberies and rapes earn him fierce enemies, and Brits are relieved when accidentally or purposefully he is shot by an archer in the New Forest. The Red King is carted to his capital at Winchester, dripping blood, perhaps because he is still alive, and dies. His brother Henry, the younger son of William the Conqueror, who has rushed to Winchester to secure the royal treasure, declares himself King.
The Church and the barons distrust Henry, either because he is William Rufus’ brother or because he may be his murderer. They tell Henry that if he wants the crown, he has to guarantee he will protect their liberties.
These include ending the plunder of the church and affirming that the church is free; ending the King’s unlimited financial demands on his barons; and restoring the law of King Edward with all its rights and liberties.
At this distance these freedoms may not seem all that liberating, but one promise will change history. They daringly establish that the King himself must obey the law of the land.
The principle that no one – not a king, not a president or prime minister – is above the law is essential to the freedom and happiness of people today.
1102 BRITS END SLAVERY
Until 1102 Brits were still being sold as slaves, “young men and maidens whose beauty and youth might move the pity of the savage, bound together with cords, and brought to market to be sold” (William of Malmesbury).
One man was about to change this. Born in Lombardy, Abbot of Bec, Anselm had been in England on business, when, in 1093, he was dragged before William Rufus, the King of England, and told he would be Archbishop of Canterbury. A pastoral staff was forced into his hand. William II regretted his decision almost immediately. Anselm had backbone. “Christ is truth and justice and he who dies for truth and justice dies for Christ” he wrote. He insists that the Church install him, not the King, and repeatedly challenges the King’s injustice.
After Henry becomes King, and despite having to make several long, hard journeys to Rome since Henry is as argumentative as his brother about his royal prerogative, Anselm calls a national church council. In 1102 they meet in London on the small island of Thorney, where the abbey of Edward the Confessor stands. At the Council of Westminster the British clergy condemn slavery as contrary to Christ’s teaching and declare, “Let no one hereafter presume to engage in that nefarious trade in which hitherto in England men were usually sold like brute animals.”
Unlike most councils this one has an effect. Slavery ends, probably because slavers in that century were afraid of one thing: Excommunication and the damnation of their immortal souls should they violate the ruling.
Slaves become villeins (serfs), owing service to a feudal lord, who owes them the use of his land and his protection. Better to be a serf than a slave, but the Brits hate serfdom, too.
1105 -1130 HENRY I WINS BATTLES; REORGANISES KINGDOM
Henry’s older brother invades England to seize the throne, and is joined by many Norman nobles, but Henry’s English subjects support him, and win a decisive victory on Norman soil at Tenchebray in 1105. In turn Henry makes many English his sheriffs and judges. He creates a royal court representing all his vassals. Members of his court of justice and court of exchequer resolve payment disputes by making a circuit of the shires to hear disputes. This is the beginning of judges’ circuits.
1131/33 HENRY I GRANTS CHARTER OF FREEDOM TO CITIZENS OF LONDON & THEIR HEIRS
Henry I recognizes the rights of the citizens of London to appoint their own sheriffs and judges, to limit their taxes, to arrange their own lands, pledges, and debts, to transport their goods free of tolls; and to be free of having soldiers billeted on them.
Henry does this because Londoners had leverage – he wanted them to support his daughter Matilda’s right to inherit the throne.
London’s Charter becomes a model for other towns. Those which grew up around abbeys take longer to establish their freedoms. Sometimes, as at St Edmundsbury, a rank injustice such as the unjust execution of the farmer Ketel inflames the citizens. At St Edmundsbury, they win their right to be acquited or condemned by a jury of their neighbours when accused of a crime.
1135 – 1148 “THE ANARCHY” REVEALS POWER OF LIBERTY AND WOMEN
Henry I wants his daughter Matilda to rule England after he dies. His nephew Stephen and the barons promise she will, but Stephen changes his mind. Londoners “elect” him King, and and he is crowned. At his coronation Stephen issues a charter promising to all his men of England ‘all the liberties and good laws’ that they had enjoyed under his predecessors.
In 1139, Matilda lands with an army to recover her throne. Stephen’s mother Adela had handled armed men and managed estates. Matilda is equally resolute, however she loses the support of Londoners by refusing to acknowledge their charter of liberties, and is forced to flee to Oxford where she was besieged by Stephen, who had escaped captivity in Lincoln. “Matilda escaped in white robes by a postern, and crossing the river unobserved on the ice, made her way to Abingdon” (Green, A Short History of England).
England is thrown into anarchy as Stephen and Matilda and their allies battle for the throne. Throughout, Stephen’s wife Matilda is “his constant companion and resolute supporter. In the years of struggle she took an active role, bringing troops to besiege Dover Castle in 1138, and mustering an army on the south bank opposite London in the summer of 1141. She took a prominent part in all the peace negotiations during the reign, including those with the Scots” (Oxford DNB).
With the leadership of Theobald, Archbishop of Canterbury, the Church finally manages to arrange a peace that pleases Matilda. Stephen will remain King, but when he dies, the crown will go to Matilda’s son, Henry. The people of England are relieved as foreign mercenaries are sent packing and their castles are razed.
Hot-tempered, witty, and ruthless, Henry II does not strike observers as a natural champion of justice.
Image: From the film THE LION IN WINTER
1154-1166 KING’S GAMBIT – HENRY II STRENGTHENS RULE OF LAW
Henry II, Matilda’s son and the grandson of Henry I, is always on the go, riding the length of a kingdom that stretches from the Mediterranean to the far north of England. His kingdom is in some chaos due to unemployed mercenaries making a living from robbery, but Henry II is an administrative genius, and he aims to end the violence and consolidate his power.
Henry figures one way to do this is to undercut his barons by drawing Brits out of the barons’ law courts and into his, where he can pocket the court fees. Traditionally, twelve local men testify in court about the facts when land ownership is in dispute. In 1163-64, at the Assize of Clarendon, the innovative Henry establishes the Grand Jury, and invites 12 men from each hundred and four men from each township to testify under oath about the facts of criminal acts to his travelling (circuit) justices.
Henry’s Grand Juries act as witnesses, and decide whether there is validity to a charge and a person ought to be brought to trial for a criminal act. The Grand Jury’s radical ability to protect freedom arises because it is locally based and knows the facts on the ground. It determines from the evidence whether there are any grounds for a trial in the first place. The Grand Jury will evolve into a great shield protecting the innocent – trial by jury.
The Constitutions of Clarendon also attempt to establish the jurisdiction of the civil courts and “the ancient customs of the realm” and limit the jurisdiction of ecclesiastical courts. The battle between Henry and the archbishop is underway.
Brits will take the idea of the grand jury and develop it into a powerful shield against government oppression.
1160s THOMAS à BECKET DEFENDS FREEDOM OF CHURCH
Brave, charming, energetic Thomas à Becket threw himsel f into the role of Archbishop of Canterbury when Henry II forced the monks to elect him. He warned Henry, “You will soon hate me as much as you love me now, for you assume an authority in the affairs of the Church to which I shall never assent.”
Their struggle is fierce. Henry had drawn judicial power into his hands, and had made some positive decisions. Now he wants to control the Church by trying “criminous” priests and monks in his courts if they have not been convicted in the ecclesiastical courts. Becket resists. He does not want a king interfering with what he believes is the church’s business. He believes that no person should be placed in double jeopardy for the same offense.
Henry also wants to control where and when bishops can travel and appoint bishops rather than allow their election. The right of sanctuary is limited. Becket refuses to agree.
He is harassed. His life is threatened. He flees to the continent, where he stubbornly refuses to agree despite the urgings of the Pope. When the hand of the Pope is strengthened, and Henry is threatened with an interdict, he agrees to back down, but he is livid with anger. Becket returns, but doubts that Henry will honour his word. It is possible that Becket knew he would be physically attacked, and reckons that in dying for his beliefs he will affirm them.
Four knights from Henry’s court force their way into Canterbury Cathedral. “Where,” cried Reginald Fitzurse in the dusk of the dimly-lighted minster, “where is the traitor, Thomas Becket?” Becket turns resolutely toward him. “Here am I, no traitor, but a priest of God,” he answers, and descends from the choir, and stands with his back gainst a pillar and fronts his foes. “You are our prisoner!” the knights shout, but Becket shakes them off. As he does, they strike with their swords, and scatter his brains on the stones.
Freedom of religion has come to mean freedom from religion freedom from the church. For many people, it is just as important that a church be free, and not controlled by a state. This is the principle for which Thomas à Becket died.
12th CENTURY ESCAPE ROUTE TO FREEDOM
Unlike the continent, where a man is either a serf or free, in Britain some serfs are tied to the land, and subject to a lord; others are free, paying rent only; still others are half free, and pay rent or owe a particular service. On the Great Wheel of Fortune that Brits see as a metaphor for life, a freeman who could not pay his rent or taxes might sink to the status of a serf, while a serf could rise and become free.
According to old custom, a serf who escapes from his lord and manages to live in a charter borough for a year and a day without being caught becomes a free man. Charter boroughs like London encourage craftsmen by hiding and protecting them. When the serf wins his freedom, his wife becomes a free woman, too.
The freeman has certain duties: He will pay taxes to his borough, take his turn standing armed watch at night, and join in defending his city from attack.
1190s SURPRISING CHURCHMAN SUPPORTS STEPS TOWARD SELF-RULE; LONDONERS LEAD
As Richard the Lionheart returned from the Holy Land, he was captured by a hostile European prince and held for ransom. His justiciar, Hubert Walter, the Archbishop of Canterbury, grants charters of rights to a number of towns in exchange for help with Richard’s ransom.
Already London citizens are:
Organising into parishes to make decisions about their PARISH neighborhoods.
Organising parishes into WARDS, and sending representatives from their parishes to make decisions for the larger ward neighbourhood.
Organising their wards into London’s greater COUNCIL, and sending a representative from each ward (an alderman -no woman) to make decisions about the whole city – such as defending it from attack and trying criminals.
Despite often brutal opposition from their kings, Brits are moving toward self-representation and self-rule.