Norman Law in the History of the United Kingdom

Norman French Meaning, as used in the UK Parliament

Norman French is a language used in Parliament in some of the formal exchanges between the two Houses during a Bill’s passage through Parliament. It is also used at Royal Assent. This is because these procedures have barely changed since they began, hundreds of years ago, at a time when Norman French was the official language of Government.

Norman legal history

Obscurity of Norman legal history

Of the law of Normandy as it was on the eve of William’s expedition, little is known for certain. To illustrate the period which had elapsed since the settlement of the Northmen in Neustria, there are no written laws, no books on law and very few charters, while the chroniclers have not much to tell about the legal structure of the duchy, and what they tell is not always trustworthy. The England of the same period supplies us with the laws of Edward the Elder, Æthelstan, Edmund, Edgar, Æthelred and Cnut; also with a large collection of land-books and writs. Even in later days, after the duke of the Normans had become king of the English, the duchy was slow to follow the kingdom in the production of abiding memorials of its law. It has nothing to set against Domesday Book or against those law-books which we know as the Leges of the Confessor, the Conqueror and Henry the First. (…)

Source: Sir Frederick Pollock, The History of English Law before the Time of Edward I (1895)

England under the Norman Kings

Effects of the Norman conquest

The Norman Conquest is a catastrophe which determines the whole future history of English law. We can make but the vaguest guesses as to the kind of law that would have prevailed in the England of the thirteenth century or of the nineteenth had Harold repelled the invader. We may for example ask, but we shall hardly answer, the question, whether the history of law in England would not have closely resembled the history of law in Germany, whether a time would not have come when English law would have capitulated and made way for Roman jurisprudence. But it is slowly that the consequences of the great event unfold themselves, and they are not to be deduced from the bare fact that Frenchmen subjugated England. Indeed if we read our history year by year onwards from 1066, it will for a long time seem doubtful whether in the sphere of law the Conquest is going to produce any large changes. The Normans in England are not numerous. King William shows no desire to impose upon his new subjects any foreign code. There is no Norman code. Norman law does not exist in a portable, transplantable shape. English law will have this advantage in the struggle:—a good deal of it is in writing.

No mere mixture of two national laws

But then, the problem to which the historian must address himself should not be stated as though it were a simple ethnical question between what is English and what is French. The picture of[58] two rivulets of law meeting to form one river would deceive us, even could we measure the volume and analyze the waters of each of these fancied streams. The law which prevails in the England of the twelfth century—this one thing we may say with some certainty—cannot be called a mixture of the law which prevailed in England on the day when the Confessor was alive and dead, with the law which prevailed in Normandy on the day when William set sail from Saint Valery. Nor can we liken it to a chemical compound which is the result of a combination of two elements.

Other elements, which are not racial, have gone to its making. Hardly have Normans and Englishmen been brought into contact, before Norman barons rebel against their Norman lord, and the divergence between the interests of the king and the interests of the nobles becomes as potent a cause of legal phenomena as any old English or old Frankish traditions can be. Nor dare we neglect, if we are to be true to our facts, the personal characters of the great men who accomplished the subjection of England, the characters of William and Lanfranc.

The effects, even the legal effects, of a Norman conquest of England would assuredly have been very different from what they were, had the invading host been led by a Robert Curt-hose. And in order to notice just one more of the hundred forces which play upon our legal history, we have but to suppose that the Conqueror, instead of leaving three sons, had left one only, and to ask whether in that case a charter of liberties would ever have been granted in England. We have not to speak here of all these causes; they do not come within the history of law; only we must protest against the too common assumption that the English law of later times must in some sort be just a mixture, or a compound, of two old national laws.

Preservation of Old English law

We may safely say that William did not intend to sweep away English law and to put Norman law in its stead. On the contrary, he decreed that all men were to have and hold the law of King Edward—that is to say, the Old English law—but with certain additions which he, William, had made to it. So far as we know, he expressly legislated about very few matters.

Personal or national law

In different ages and circumstances the pride of a conquering race will show itself in different forms. Now-a-days the victor may regard the conflict as one between civilization and barbarism, or between a high and a low morality, and force his laws upon the vanquished as the best, or the only reasonable laws.

Maintenance of English land law

Indeed the capital instance of harsh treatment consists in an application of the theory that they have not been conquered by foreign enemies, but, having rebelled against one who was de iure king of the English, are to be lawfully punished for their unlawful revolt.

The English in court

All this made English testimony and English tradition of importance; the relative rights of the various Norman magnates were known only to Englishmen. Englishmen were mixed up with Frenchmen at the moots and often spoke the decisive word. The aged Æthelric, Bishop of Chichester, “a man very learned in the laws of the land,” was brought by the Conqueror’s command to Penenden Heath that he might hear Lanfranc wax eloquent over sake and soke and flymena-fyrmð.40 Eadric the steersman of the Confessor’s ship, and Kineward who had been sheriff of Worcestershire, [101] Siward of Shropshire, and Thurkill of Warwickshire were ready to attest the sake and soke which the church of Worcester had over Hamton and Bengeworth; but the Abbot of Evesham dared not face them.41 Godric, Godwin and Colswein were among the “approved knights French and English” who heard the Abbot of Ely’s suit at Kentford, and that suit, in which many Normans were concerned, was decided under the king’s command by a verdict of English jurors who knew how the disputed lands lay in the time of King Edward.42 The Abbot of Abingdon was protected in his possessions by the learning and eloquence of lawyerly English monks, whose arguments were not to be withstood.43

Norman ideas and institutions

On the other hand, it is not to be denied that the few legal ideas and institutions which we can confidently describe as imported from Normandy, were of decisive importance. This is preeminently[72] true of the transplanted Frankish inquest. It has in it the germ of all that becomes most distinctively English in the English law of the later middle ages, the germ of trial by jury and of a hard and fast formulary system of actions which will be tough enough to resist the attacks of Romanism. However, the fate of the inquest was still in the balance a century after the Conquest, and, but for the comprehensive ordinances of Henry II., it might have perished in England as it perished in its original home. Whether any definitely new idea is introduced into the English land law is a more disputable question, that cannot be here discussed, but undoubtedly the conquest, the forfeiture, the redistribution of the land gave to the idea of dependent and derivative tenure a dominance that it could not obtain elsewhere, and about that idea in its Norman or French shape there clung traditions of the old Frankish world, which in the subjugated country under its foreign kings might bear fruit in a land law of unexampled simplicity.

As to the institutes of private law we know much too little to justify dogmatic ascriptions of this to an English and that to a French origin; and when the French origin may be granted, we are far from being able to say that here is something which the Normans brought with them in the year 1066. French influences had been at work in the court of Edward the Confessor; Frankish influences had been at work in the courts of much earlier kings; after the Conquest England lay open for two centuries and more to the latest Parisian fashions. For example, the style of the English chancery—and this in England becomes the model for all legal documents—goes back by one path and another through the Frankish chancery to Rome. But the paths are very various. Some of the Conqueror’s charters are very like those which Edward and Cnut had issued, and very unlike those of Henry II. We may say, if we please, that the seal, of which our law made much in the later middle ages, of which it makes much at the present day, is French. But the Confessor had a seal, and in all probability but very few of the men who fought by the side of the Norman duke had seals. The chief result of the Norman Conquest in the history of law is to be found not so much in the subjection of race to race as in the establishment of an exceedingly strong kingship which proves its strength by outliving three disputed successions and crushing a rebellious baronage.

The law-books or “Leges.”

The best proof, however, of the perdurance of the Old English law is given by what we may generically call the law-books of the Norman period. The Conqueror had amended and confirmed the laga Eadwardi; Henry I. had confirmed the laga Eadwardi and his father’s amendments of it. Where then could the law of Edward, that is to say, the law of Edward’s time, be found? No doubt a good deal of it was to be found in the code of Cnut and in the yet earlier dooms. But the language in which they were written was unintelligible to Frenchmen, and was fast becoming unintelligible even to Englishmen, for just at this time the English language was undergoing a rapid change. What is more, it was plain that, despite the large words of the Norman kings, the old dooms in their integrity could not fit the facts of the new age. Thus what was wanted was no mere translation of ancient texts, but a modernized statement of the old law, a practicable laga Eadwardi. Divers men in divers parts of the country tried to meet this want. The result of their efforts is a curious and intricate group of writings, which even at the end of the nineteenth century will hardly have been unravelled. We shall here speak very briefly of it, adopting what we believe to be the soundest results of recent criticism.

Genuine laws of William I

In the first place, we may put on one side certain documents which profess to give us, not the old law, but the results of William’s legislation, the documents from which we have already extracted our account of his edicts. We probably have in its original form, that of a writ sent into the various counties, the ordinance which severed the ecclesiastical from the temporal courts.57 We have in English as well as in Latin the ordinance about criminal accusations brought by men of the one race against men of the other.58 Lastly, we have a set of ten brief paragraphs dealing with the oath of[76] fealty, the murder fine, the abolition of capital punishment and the other matters which have already come before us. These ten laws may not have been collected until some time after the Conqueror’s death, and it is more than probable that we have not the words that he used; but the collection seems to have been made early in the twelfth, if not before the end of the eleventh century, and the result is trustworthy. At a much later date some one tampered with this set of laws, interpolated new matter into it and threw it into the form of a solemn charter.

The Quadripartitus

But we must pass to the attempts which were made to state the laga Eadwardi. In the reign of Henry I. some one set himself to translate the old dooms into Latin. To all seeming he was not an Englishman by race and English was not his natural tongue. He may have been a secular clerk living at Winchester and employed in the king’s court or exchequer. He was closely connected by some tie or another with Archbishop Gerard of York. We have more than one edition of his work; these can be distinguished from each other by the author’s increasing mastery of the English language, though to the end he could perpetrate bad mistakes. As the work went on, he conceived the project of adding to his Latin version of the ancient dooms three other books and calling the whole Liber Quadripartitus.

The first book was to contain the Old English laws done into Latin; the second was to contain some important state papers of his own day; the third was to be about legal procedure; the fourth about theft. If the two last books were ever written, they have not come down to us. The first and second books we have. The second opens with the coronation charter of Henry I. Then apparently it purposes to give us the documents which relate to the quarrel about the investitures; but it gradually degenerates into a defence of Archbishop Gerard. The author seems to have been at his work between the years 1113 and 1118; but, as already said, he returned to it more than once.

Whatever grander projects he may at times have entertained, what he has left as a monument of English law is in the main a laborious but not very successful translation of the old dooms. He translated after his fashion most of the dooms that have come down to us, except the very ancient Kentish laws, and he translated a few which have not come down to us save through his hands. He translated for the more part without note or comment, translated honestly if unintelligently. But he aspired to be more than a mere translator. He put Cnut’s code in the forefront; this was the latest and most authoritative statement of English law; the earlier dooms—they go back even to Alfred and to Ine—come afterwards as being of less practical value. He does not regard himself as a mere antiquarian.60

Leges Henrici

Closely connected with the Quadripartitus is a far more important book, the so-called Leges Henrici. It seems to have been compiled shortly before the year 1118. After a brief preface, it gives us Henry’s coronation charter (this accounts for the name which has unfortunately been given in modern days to the whole book), and then the author makes a gallant, if forlorn, attempt to state the law of England. At first sight the outcome seems to be a mere jumble of fragments; rules brought from the most divers quarters are thrown into a confused heap. But the more closely we examine the book, the more thoroughly convinced we shall be that its author has undertaken a serious task in a serious spirit; he means to state the existing law of the land, to state it in what he thinks to be a rational, and even a philosophical form. But the task is beyond his powers.

For one thing, his Latin is of the worst; he learnt it in a bad school and it will hardly suffer him to express his meaning; probably his mother tongue was French. Then the books from which he copies overweight him; he cannot adhere to any one plan or pursue any one line of thought. Nevertheless he is in earnest, and when he can leave his books alone and succeed in explaining himself, he tells us many things that are of great value. He had a good many books at his command. He took much from the code of Cnut and from some of the older dooms, but unless (this is not impossible) he himself was the author or projector of the Quadripartitus, he seems to have been dependent on the first book of that work for his text of these Old English laws. His object being to state the laga Eadwardi as amended by the Conqueror and Henry I., he naturally made great use of this English matter; but he dipped at times into other springs. He had found a source of “general jurisprudence” in Isidore’s Origines.

Ecclesiastical causes were no longer subject to native English law; the Conqueror had handed them over to the canones, and for the canones of the catholic church our author had to look to foreign books, in particular to that compiled by Burchard of Worms. He took a few passages from the venerable Lex Salica, from the Lex Ribuaria, from the Frankish capitularies; we may safely say that, had these ancient authorities been regarded by the Normans in England as practicable written law he would have taken more. He took one little sentence out of an epitome of the West Goths’ version of the Theodosian Code.

But the most interesting parts of his work are those which we can trace to no remoter fount. If they paint English law as a wonderful confusion, they may yet be painting it correctly, and before we use hard words of him who wrote them, we should remember that he was engaged on an utterly new task, new in England, new in Europe: he was writing a legal textbook, a text-book of law that was neither Roman nor Canon law. To have thought that a law-book ought to be written was no small exploit in the year 1118.

The Consiliatio and Instituta Cnuti

The writer of the Leges Henrici is in some sort the champion of West Saxon, or rather of Wessex law. Wessex is in his opinion the head of the realm, and in doubtful cases Wessex law should prevail.63 Other attempts to state the old law were made elsewhere. In the early years of the twelfth century two Latin translations of Cnut’s dooms, besides that contained in the Quadripartitus, were made, and in each case by one who tried to be more than a translator; he borrowed from other Anglo-Saxon documents, some of which have not come down to us, and endeavoured to make his work a practicable law-book. One of the most remarkable features of all these books is that their authors seem to be, at least by adoption and education, men of the dominant, not men of the subject race; if not Frenchmen by birth, they are Frenchmen by speech.

At a later date, some forest laws were concocted for Cnut, but to describe these we must use a harsh term; to all seeming they are the work of a forger, who was inventing a justification for the oppressive claims of those mighty hunters, the Norman kings.

Custom of the king’s court

Only to one quarter can we look hopefully. Above all local customs rose the custom of the king’s court, “the tremendous empire of kingly majesty.”77 Of the law that this court administered we know little, only we may guess that in a certain sense it was equity rather than strict law. On the one hand, the royal tribunal cannot have held itself straitly bound by the Old English law; the men who sat in it were Frenchmen, few of whom could understand a word of English. On the other hand, it must often have happened that the traditional Norman customs would not meet the facts, for a Norman count and a Norman bishop would be quarrelling over the titles of their English antecessores, and producing English land-books. Besides, the king did not mean that England should be another Normandy; he meant to have at least all the rights that his cousin and predecessor had enjoyed.

The jurisprudence of his court, if we may use so grand a phrase, was of necessity a flexible, occasional jurisprudence, dealing with an unprecedented state of affairs, meeting new facts by new expedients, wavering as wavered the balance of power between him and his barons, capable of receiving impressions from without, influenced by the growth of canon law, influenced perhaps by Lombard learning, modern in the midst of antique surroundings. In retrospect it would appear to a statesman of Henry II.’s day as something so unlike the laga Eadwardi, that it must be pronounced distinctively un-English and therefore distinctively[86] Norman, and Norman in a sense it was.78 It was not a jurisprudence that had been transplanted from Normandy; but it had been developed by a court composed of Frenchmen to meet cases in which Frenchmen were concerned; the language in which men spoke it was French; and in the end, so far as it dealt with merely private rights, it would closely resemble a French coutume.

Royal justice

The future was to make the jurisprudence of the king’s court by far the most important element in the law of England, but we can hardly say that it was this during the reigns of the Norman kings. In the main that court was a court only for the great men and the great causes. It is true that these foreign kings did not allow their justiciary powers to be limited by any of those hedges which might have grown up in an unconquered country and confined the scope of royal justice to certain particular fields. The list of the “pleas of the crown” was long, disorderly, elastic; the king could send a trusted baron or prelate to preside in the county courts; he could evoke causes into his own court. But evocatory writs must be paid for and they were not to be had as matters of course. The local courts, communal and seignorial, were the ordinary tribunals for ordinary causes; the king’s justice was still extraordinary, and even the pleas of the crown were for the more part heard by the sheriffs in the shire-moots.

Then, again, the king’s court was not in permanent session. Under the two Williams the name curia Regis seems to be borne only by those great assemblages that collect round the king thrice a year when he wears his crown. It was in such assemblages that the king’s justice was done under his own eye, and no doubt he had his way; still it was not for him to make the judgments of his court.

Under Henry I. something that is more like a permanent tribunal, a group of justiciars presided over by a chief justiciar, becomes apparent. Twice a year this group, taking the name of “the exchequer,” sat round the chequered table, received the royal revenue, audited the sheriffs’ accounts and did incidental justice. From time to time some of its members would be sent through the counties to hear the pleas of the crown, and litigants who were great men began to find it worth their while to bring their cases before this powerful tribunal. We cannot say that these justiciars were professionally learned in English law; but the king chose for the work trusty barons and able clerks, and some of these clerks, besides having long experience as financiers and administrators, must have had a tincture of the new canonical jurisprudence.

But, for all this, when Henry died little had yet been done towards centreing the whole work of justice in one small body of learned men. And then a disputed succession to the throne, a quarrel between the king and the officers of his exchequer, could impair, or for a while destroy, all such concentration as there was. In the woful days of Stephen, the future of English law looks very uncertain. If English law survives at all, it may break into a hundred local customs, and if it does so, the ultimate triumph of Roman law is assured.