Saturday, 25 April 2015

Written versus Unwritten Law


Glanville in the preface to his work A Treatise on the Laws and Customs of the Kingdom of England, composed in the late part of the reign of Henry II, commented that it was “wholly impossible for the laws of the kingdom to be put down in writing in his time, both because of the ignorance of the scribes, and also because of the confused multiplicity of those same laws”.  According to Glanville custom as a foundation or principle of law required a resort to memory as a means of identifying what a particular custom might have been. But that very act, as is the same with History, the facts and the customs concerning a remembered past come under the pressures  and needs of the present. Memory, of course, plays a significantly important part in legal culture, but memory, as a psychological function, adapts facts, alters them, and sometimes disposes of them altogether.

Glanville dealt with only questions of law and lawsuits brought before the King's Courts, excluding all else. For Glanville the Customs of the Realm were embodied in the system and procedures of writs or brieves used to initiate cases in the King's Courts and the remedies implied by those writs. Moreover every writ specified that the claim and its case had to be heard in the King's Court.
When considering the nature of custom, the lack or absence of a document recording what has gone before means that an “immemorial custom” may not be ancient at all but, in fact, be relatively recent.

A relevant fact about the Constitutions of Clarendon was that they were specific statements of law that were physically written down on a parchment. They were an attempt to codify in writing the customs and laws of the kingdom in respect of the relationship between the Church and State.. At the Council of Clarendon in January 1164 Becket actually gave his verbal assent that he would obey the customs of the kingdom [saving his order], namely the consuetudines of King Henry I, which he understood to be vague and unwritten, and not specifically identified as to exactly what those laws actually were; that is matters which could be decided perhaps upon on a regional and/or case by case basis. But King Henry II decided that he wanted to have these customs compiled in a written format, as a chirograph to be valid across the whole of the kingdom and insisted that Becket and the bishops of England that they should apply their seals to the parchment on which they had been listed showing that they had formally and completely assented to them, Becket refused to apply his seal wanting first to consult with the Pope. This act of dissent greatly angered Henry II  who considered Becket as now being entirely disobedient to his authority, and thus the dispute between them now came out publicly into the open.

Unwritten law is more flexible than written law: the latter which by its very nature is fixed and unmutable. Unwritten law evolves over time, and can be seen as representing a kind of truer system of law, a law of the people, that which the community as a whole at any moment sees what its customs as being. Anglo-Saxon law meant customary law, the law of one's forefathers. King Henry II when ascribing that the Constitutions of Clarendon were the Customs of his grandfather's time he was appealing to a very Germanic principle. It was almost an unwritten rule of kingship that the job of the king was to preserve the existing order, the good old law, that in order for the kingdom to prosper it needed stable law and order, which King Stephen had spectacularly failed to provide.

In Roman Law unwritten law was called Ius Non Scriptum. In English Common Law it was called Lex Non Scripta, forming the basis of that system of law that was just coming into being at that time, although that did not necessarily mean unwritten law. The latter was based on case law on a judgement by judgement basis, and precedent

The Empress Mathilda herself, King Henry II's own mother, was highly critical of her son and his having compiled the Constitutions of Clarendon into a written and fixed form, and forcing the bishops to apply their seals to the document. She believed that Henry had made a big mistake in his dealings with the Church in this manner. and that this was central to the cause of the Controversy with Becket. She thought it was was totally unnecessary for Henry to have done this. She definitely believed Henry could have got his way with the Church if he had simply got the bishops to agree verbally that they would agree in public simply to accept the laws and customs of the kingdom, and left it at that.

The Veracity of Henry II's claim they were the Customs of his Grandfather

Becket and his party never seriously challenged the veracity of Henry II's claim, at the time of their publication, that the Constitutions of Clarendon truly were the customs and rights enjoyed by Henry's grandfather or his predescessor kings. They preferred instead to challenge them on strictly Canon Law grounds. Herbert of Bosham was later to suggest in his Vita of Becket that the barons Henry had instructed to compile these so-called customs had made some of them up. John of Salisbury, earlier in time, in his work Entheticus Major when discussing the duplicity of the morals at court that

"I fear that the chancellor [Becket] is striving in vain that the proud court should change its customs" ... in as much as corrupt "morals have been introduced into court by that rope-dancer [Henry II] who defends by the law of his grandfather whatever he attempts."

Auctore Herberto De Boseham
Vita S, Thomae
Materials for the History of Thomas Becket, Volume III pp. 278-80
Liber III
(28.) De vocatione archipraesulis apud Clarendune
https://archive.org/stream/materialsforhist03robe#page/278/mode/1up

Translation by
Fisher, M. Ann Kathleen, "An Annotated Translation of the Life of St. Thomas Becket By Herbert Bosham (Part Two)" (1947).
Master's Theses. Paper 171.
http://ecommons.luc.edu/luc_theses/171
pp. 66-8

Book III
Chapter 28. The Archbishop is Called to Clarendon
The king, zealous, as it seems, tor the peace ot the
kingdom and the priesthood, but less far-sighted in regard
to himself and his archbishop, not perceiving any hidden
malice in this plan, soon summoned to that noble and splendid
palace of the king, that castle called Clarendon, because
of its splendor, all the prelates and nobles ot the
realm. Within a few days they all assembled; and there
in the presence ot all, and first in rank, preceding all the
archbishops, our archbishop solemnly promised, according to
the form previously mentioned, that he would observe the
royal customs "in good faith", suppressing, of course
"saving the order". And as if adding the caution connected
with swearing, he confirmed his promise to do this on the
word of truth. All the archbishops one after another, did
likewise. Whatever he had promised at that castle to which
we referred previously, namely Oxford, he would hardly have
been induced to this oath; the principal reason that he
was induced was certainly his fraternal and compassionate
charity. For he had brotherly compassion for certain of
his brothers, his fellow bishops, fearing more for them
than for himself, for that generous man, Henry of glorious
memory, then bishop of Winchester, and for Jocelin, then
bishop of Salisbury. Unless he would do this, arrest or
worse seemed to threaten these men because of old grievances,
and now, because they were under suspicion in this difficulty
ot the church. Indeed, such was the nature ot the obligation
which the archbishop and bishops had to observe the
royal ancestral constitutions, as they were called. And
the obligation had been exaggerated in this way: the investigation
of the royal customs was made through these nobles
ot the kingdom who should have been familiar with them, so
that, as it were, they might be publicly and expressly recounted.
When the greatest part ot these had been explained,
and it seemed that many more would be explained at
length, the archbishop interrupted, stating that he was not
among the more venerable of the kingdom so that he would
know the ancient customs ot the kings, and that neither had
he been long in the archbishopric, therefore he had no
knowledge of these matters; and that, furthermore, since
the day was now far spent,such business ought to be
postponed until tomorrow. His request met with approval,
and he went into his guest-chamber, returning on the following
day. The royal constitutions which had been interrupted
on the previous day were investigated, explained, and
reduced, in completed torm, to writing; these were called
by the name of royal constitutions. Many of these, as
several proposed, were by no means royal, but, as we began
to say, were the poison of rivalry and envy, vomited forth
in hatred of the archbishop for the enslavement of the
church. The king himself was not aware that unfriendly men
craftily intended thus to sow the cockle of discord between
himself and his archbishop. For neither the king, who was
then merely a youth, nor his new archbishop was acquainted
with the royal customs except through the report of others. 


Truth versus Custom


Marjorie Chibnall (1991). Proceedings of the Battle Conference 1990. Boydell & Brewer Ltd. pp. 21–. ISBN 978-0-85115-286-8.
It is ascribed to Pope Gregory VII that he wrote "Christ said 'I am the Truth' and not 'I am a custom' ".

Parker Society (Great Britain). (1844). Publications. pp. 390–.

Decretum Gratiani: Pars I Distictio VIII C 5
Item. Gregorius VII. Wimundo Auersano Episcopo.
Si consuetudinem fortassis opponas, aduertendum est,
quod Dominus dicit: "Ego sum ueritas." Non dixit:
ego sum consuetudo, sed "ueritas." §. 1. Et certe (ut
B. Cipriani utamur sententia) quelibet consuetudo, quantumuis
uetusta, quantumuis uulgata, ueritati est omnino postponenda,
et usus, qui ueritati est contrarius, abolendus est.

In Chapter 23: Reform: Innovation and Tradition in Medieval Christendom

"The essential ideas of the canonistic renewal were veritas, truth, and iustitia, justice, which were to be vindicated against ill-founded and unjust consuetudo, custom.
...
It is by no means by accident that the old statement, formulated by Tertullian and then used by Cyprian and Augustine, that Christ had not said: I am custom, but that he had said, I am the truth, was now taken up again." [by pope Gregory VII].



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A Concise History of the Common Law - Online Library of Liberty

Constitutions of Clarendon- Empress Mathilda's Opinion of The Constitutions

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Bruce O'Brien
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Edward Jenks
The Yale Law Journal
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