Laying down the law
Wednesday 27th July 2011
I confess to being a lover of France. One of my favourite places is the chateau of Chinon. Perched on rocks overlooking the Vienne river near to its confluence with the Loire, the now-crumbled ramparts tell of a magnificent medieval fortress.
Built by Henry II of England it was here that he died in 1189, beset by his rebellious sons. His remains were carried to the nearby Abbey of Fontevraud to be buried. To this day, the effigy which adorned his tomb has pride of place in the magnificent restored nave of the Abbey church, alongside those of his wife, Eleanor of Aquitaine and Richard, Coeur de Lion.
Over two centuries later, in 1429, Joan of Arc met the dauphin, later to be Charles VII of France, at Chinon. Charles had disguised himself as one of his own courtiers, yet despite never having met him Joan immediately picked him out.
Henry was not only king of England but also Count of Anjou and Duke of Aquitaine and his realm covered much of modern day France. He was an educated man and a gifted lawyer. He arguably had more influence on the development of our legal institutions than any other monarch before or since.
He inherited a kingdom on its knees by civil war and crime. Civil and criminal cases were decided by trial by combat, ordeal or oath swearing (compurgation). Henry introduced a number of new procedures which enabled civil disputes to be decided on the evidence, the basis of our present day courts. He instituted a system whereby twelve knights would convene to determine, using their own local knowledge, who was entitled to property (most disputes involved title to land). This evolved into the jury we know today.
More importantly, Henry introduced a system of itinerant justices, known as justices in eyre. These judges were appointed by the king and sat in the king’s courts. Henry, though, was anxious to break the control of the sheriffs, barons and the church, who all ran their own courts applying local or church law. Henry was determined to assert royal authority and to establish one common system of law, which would be applied by his justices who travelled across the land to decide criminal and civil cases. The king’s justices would apply this universal ‘common law’ and would also record their decisions centrally in London.
This process evolved into the system of binding precedent that we have today, whereby the reported decisions of the High Court and Appeal Courts are binding on themselves and all lower courts. It is found all over the world in countries where the common law applies. Even in the second decade of the twenty first century, the Queen’s justices continue to go out on circuit to try the most important civil and criminal cases.
If you ever find yourself in the area of Chinon, you could do far worse than spend a few moments looking out from the walls and across the river, at the place where England’s greatest monarch lived, and died, and reflecting on the very great debt that England and English law owes to him.