The growth in the power of the state and the Church.
Time wise we are towards the end of 1090’s, work on the census detailing who had what for the entire kingdom was well underway.
The Doomsday book was the equivalent of the state census.
It meant the King and Church could know who lived in each hamlet or village and what they possessed in the way of Land, property, and livestock.
The Doomsday book was a prime example of the maxim knowledge is power
(“Ipsa Scientia postetas est”).
The crown, with the assistance of the Church, could use the book to assess how much to tax everyone.
The king, by right of conquest, could make law by proclaiming what the law was and the Witan council was a thing of the past. The king’s advisers were mainly Norman lords or clerics. The new chief advisor became known as the Lord Chancellor, if you are a fan of Game of Thrones the role is that of the king’s hand if you are not you will wonder what I’m talking about. Other senior Lords from the church and state would also meet with the king as his royal council. Today this institution is called the Privy Council.
The English, (Saxon, Norse, Celtic and Romano British) were powerless they were under the control of the two pillars of the medieval period in Europe the Church and State. The Church owned huge estates, paid no taxes, had its own separate laws and courts.
This is not to say that the period before 1066 was tranquil, far from it.
The life expectancy for most was short, disease and death were a constant reality for most people.
But there was a Saxon legal system that had the wide support of the common people you will recall the Common Law of the land and trial by juries.
The Common Law Survived because of its adaptability it evolved when necessary as society changed. The fact it was laws which everyone knew and accepted, which was closely linked to custom and practice and moral norms helped it to survive to this day.
The Normans kept the Common Law intact because it worked, the state added new draconian laws to it, such as restricting hunting or the use of land, the King took huge portions of land as his playground for hunting This resource had been a common resource for most of the people to use to help feed their families, graze their animals and use the wood for fires or building homes.
The Crown made laws banning the people from using the King’s land on pain of death.
In addition, the Church required the poor to pay a “tithe”, a tax of ten percent from their income usually in the form of some of their produce on a yearly basis ;
Take a look at your local area, I bet you will find a reference to a Tithebarn which was where this tax was collected. Current road names, city and town names can still be linked to the 1100’s such as Manor, Common, Mill, Ham and Tithe.
The poor serfs were working his local lords land so that he could grow food for himself and his family on the communal strip farms.
- They were paying tax to the state
- They were paying tithes to the church
- In addition, they were also required to fight wars if their feudal masters required it. If they refused they faced severe punishment or death.
Law at a local level continued with manorial courts, but disputes between the gentry or involving serious crimes such as treason, or counterfeiting coins were dealt with by the local assize courts.
The local assize courts continued right up to 1971 when it was replaced by two courts the Crown Court and County Court.
The king appointed Sheriffs, circuit judges who supervised the assize courts, and high court Judges based in London.
Sheriffs held prisoners for the next assize court. The Sheriff was appointed by the King and was generally more independent than other local lords in protecting the king’s interest.
The king appointed Judges and sheriffs to administer law throughout the land.
Judges were trained lawyers sent out to decide important cases at certain times of the year in the local towns. They would travel a circuit of towns deciding cases, recording their decisions in each town then going on to the next town on their circuit. These judges were called circuit judges and the time of the visit at each town on each judges circuit was referred to as the assize time. Circuit Judges could decide many types of disputes, not just criminal matters but also land disputes, inheritance disputes etc.
More senior Judges, “Law Lords and high court Judges”, stayed at the Kings courts and heard cases on behalf of the king. All these cases were recorded in writing. The most senior Legal person was the King and his deputy the Lord Chancellor.
To give Justice legal decisions needed to be explained clearly so that everyone would know what the law was on any particular issue. Decisions also need to be consistent across the whole country.
Judges recorded the reasons for their decisions in writing and still do in what lawyers call a judgment. The actual decision part of a judgment we call the “ratio decidendi” and the rest of the judgment is called the “obiter dicta”. Ratio Decidendi, the reason for the decision. Obiter Dicta means things said by the way.
To provide consistency in their decisions judges would discuss the cases they heard with other judges and this lead to more consistency because judges would seek to be consistent with their colleagues.
The accumulation of the record of old cases is called case law and the rules of precedence about which case is to be followed by which court we will discuss in the next blog.
In summary, I have discussed the plight of the English after the Norman conquest, I have explained how the power of the state was maintained through force, and the church’s support. The blog also considered the role of the assize courts and circuit judges.
Tony Hughes LLB, PGCE Barrister(Retired)
William the Conqueror as we know won the battle of Hastings, with less than 10,000 men, the population of England was around the 2-3 million mark.
Previously when Kings died in battle the English made accommodations with the victor even if they were foreign. For example, Cnut, what didn’t happen is the whole landowning class being kicked off the land and it being handed over to the new kings best mates.
The English could have fought on but by Christmas 1066 William was crowned King of England.
Well this is my opinion and you may plausibly disagree, I think the Catholic Church had a lot to do with it.
The Pope supported William’s claim to the Throne and gave him a banner which was blessed to show public support for him.
The Witan (English counsel/early parliament) had lost a lot of the most senior Lords, and Earls and most of the professional fighting men in two bloody encounters. First Stamford Bridge then Hastings.
The English church was rich it held 20% of all land in the kingdom.
William couldn’t take church land as this would enrage the Pope. So the writers of history the Clerics had more sway in the aftermath of the Battle and I think a secret deal was done with the Church supporting Williams coronation, then helping William and collaborating with him
With Church support and their power on his side, the ignorant peasants were less likely to rebel. The church was very powerful at this time they were rich owned land and had the ability to rouse the population as they did against the pagan Vikings many times before 1066, their meek acquiescence stinks!
Once crowned in the remainder of his lifetime William was busy quelling rebellions, dolling out land to his supporters and finding out what he could tax to make his family rich and able to carry on ruling what was a foreign country to the Normans who spoke French and if educated Latin.
So what changed when William took over and why is this significant in identifying the sources of English Law?
The first thing William changed was he established through a census recorded by clerics in the Doomsday book who had what land and who owned everything in his Kingdom. The church had a monopoly on writing and education at this time so for him to get and use this information he needed the assistance of the English Catholic Church which was provided.
What he did next was brilliant he took all the land and said that you do not own the land I do, you can still farm it only if I let you.
He then gave the land to his supporters who had fought for him they became tenants of the land and held rights over the land and had rights over the people on the land who worked it as their serfs.
The tenants in chief the Saxon nobility were simply kicked out and replaced by Normans who then largely continued to abide by the common law and local customs in relation to rights to graze animals on common land, work their own strips of the communal field and work the lord’s land as a payment for being allowed to continue living and working on the land.
Very similar to sharecropping in the united states after their civil war.
Historically even today any freehold landowners do not, in fact, own the land they think they own, they only own the “fee simple absolute in possession“.
The land is still owned by the crown ultimately that is why the crown can grant rights to frack on land or mine on land or route utilities underground land with houses. That is why you can’t charge airlines for flying over your land, the landowner only has ownership of certain rights which can be taken away from you by the state.
The Defence of the Realm Act DORA in the second world war gave the state the power to requisition land for the use of the state and many people were thrown out of their homes.
It’s William the Conquerors fault!
That is why there are different tenancies, lease-holding rights which can be bought and sold or given to others by conveyance or through custom and practice over many years. For example the right to walk down a public footpath on land owned by someone. The rights to easements access for example across the land you do not own.
William the Conqueror and the Catholic church had a lot to answer for, we would be much more like the Danes and Germans and we wouldn’t have been embroiled in constant conflict in France for over 400 years.
Tony Hughes LLB, PGCE Barrister Retired.
In order to understand English law, you need to understand it’s sources and origins.
So let me take you on a journey back in time to before 1066 and the Norman conquest. The notion of England, “Eng” meaning Anglo-Saxon “Angleland”, was a relatively new concept and have been in existence for barely 100 years. Historically the first King to rule over what we call England now was Athelstan, the grandson of Alfred the Great in the 960’s. During the next 100 years, England was ruled by both the English kings such as Edmund Ironside and Edward the Confessor there were times in which the Viking Invaders had the upper hand and ruled England, for example, Canute, and Harthacnut.
So why is a blog about the law spending so much time on Anglo-Saxon history? Both the English and Viking kings of England ruled the country with the support of the Witan, which was a council of earls, lords, bishops and archbishops. All the kings who were anointed as kings of England.
They promised that they would uphold common customs and law as it was in the coronation oath. So in this sense, there was a bargain between the English people’s and they’re king that they would maintain the status quo. The origins of the Common Law, the law that was common to the whole country, came from the customs and practice of the English speaking people’s.
Murder is still a common law offence to this very day.
All power stemmed from the feudal system which was as follows;
Society at this time existed around the need for food and security, those who were strong provided protection to the serfs who received some land for themselves to grow food and in return worked their lords land as well. In return, they got security from their lord.
Over time groups grew, minor lords supported earls and the strongest earls became Kings. Can you see that there is a social contract between the ruled and the rulers?
You can see how the strong became wealthy and the weak became dependent and vulnerable to exploitation.
Local disputes were dealt with by the Lord using the jury system.
The jury system evolved out of who was more popular in the small local community. Someone accused of a crime would get his friends family and neighbours to swear that he was in the right. Those prepared to swear on behalf of the accused became known as a jury. The accuser would do the same they would get as many people as he could to support them. What you’ve got to remember is there was no Forensics or any weighing the evidence, guilt was largely determined based on popularity in the local community. Small communities knew who was trustworthy, so the system was not totally arbitrary.
Originally the country was divided up into small kingdoms such as Wessex, Kent, East Anglia, Mercia and Northumbria. Each kingdom had counties divided into shires and each shire into hundreds. The term hundred directly relates to the size of the area that could raise a hundred fighting men for the King who would summon them to support him in time of war.
Land and rights related to land were so important because this is what generated wealth and income and power.
The great lords could afford to have housecarls a private professional small army.
Local rights were recorded by the only people who could write the local priests and clerics who themselves held land and gained wealth by gifts of land from lords and kings.
Laws developed through custom and practise, and cooperation, for example, the right to fish a certain river, the right to take wood from certain land or mine copper on a certain area. All these rights were recorded either verbally through collective memory or by the local clergy in a written deed.
All Kings knew that to hold the country and generate wealth they needed stability and peasants working the land it was the king’s job not to make new law but preserve the customs and common laws of the country as a whole.
The king own private army was very small he needed the support of the people to govern, collect taxes and maintain power.
Complying with local and national custom helped maintain support and this was equally true of the Viking and Saxon kings of England before 1066.
To summarise the common law source of law derives from what was accepted as such, the ownership of land, the rights over land and local custom were mainly not recorded in writing but were part of the collective verbal memory of the community. The king ruled a feudal society with the consent of the witan and the support of the feudal lords and common people. This is a social contract between the ruled and the ruler.
Disputes were resolved mainly through the jury system…
Peasants had rights to land and other resources such as common land grazing of pigs in the local woods and collecting firewood in the area in exchange for their labour.
The country was organised into counties, shires and hundreds. The system was robust with the support of the people who could be called upon to fight. The two pillars of society was the State and the church.
Tony Hughes LLB hons, PGCE Barrister (retired). May 2018,
Thanks for joining me!
Good company in a journey makes the way seem shorter. — Izaak Walton