The consequences of the Norman Conquest for Jersey

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This article first published in the 1967 Annual Bulletin of La Société Jersiaise was based on an address to the Société the previous year by the former Bailiff, Lord Coutanche, on the 900th anniversary of the Battle of Hastings

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Two principal consequences

I believe that the first consequence of the conquest is the fact that today we are governed by our own laws, administered by our own courts, which are autonomous save an appeal to the Queen in Council. Nearly the whole of our privileges flow from that fact. I believe that the second consequence of the conquest is the fact that we have today our own system of government, which is autonomous save in relation to its foreign affairs.

I think that from these two principal consequences flow two other consequences: the first is our freedom of trade and the second is the gradual growth of English influence in this Island. I want to deal with these very important questions in three periods of time: the first before 1066; the second between 1066 and 1204 (when King John lost Continental Normandy); and the third from 1204 onwards.

Origins of Normans

I hope I shall not be thought to be going outside the scope of my mission if I refer very briefly to the origins of the Normans. I draw my information, for which I claim no personal knowledge, from three great Channel Island historians: Guy de Gruchy, G R Balleine, and John Le Patourel.

I think it can be said with certainty that it was in the 9th Century that Norwegian tribes sailed their ships westwards to the Orkneys and Shetlands, turned south and ravaged the two sides of the Irish Sea. They entered the Channel by what we would now call the Western Approaches, and raided the coasts of England as far as Dorset.

Very much at the same time, Danish tribes sailed southwards, ravaged the Frisian and the English coasts of the North Sea, entered the Channel from the east, and penetrated the estuary of the Seine. I think it is true that both the Norwegian and the Danish tribes took part in the settlement of Normandy. However we must not overlook the fact that the Bretons, being principally Britons who had fled from Devon and Cornwall in face of the advancing Anglo-Saxons, had established themselves in Brittany and had likewise raided the coasts.

It is thought that for a period those Bretons exercised a considerable influence in this Island. But it is false, as Guy de Gruchy points out, that the origin of this Island was in any sense Breton. The Bretons were foreigners, just as much as were the Normans, and they were not very much earlier as settlers. That, very briefly, is the background of the Normans.

Rollo

In 911 Rollo, who was the leader of one band of Vikings in their long ships, had made himself so much master of the country around the estuary of the Seine that Charles the Simple, King of France, ceded to him Upper Normandy, which became the nucleus of the Duchy of Normandy.

It is quite clear that that cession by Charles the Simple did not include what today we call the Cherbourg Peninsula (the Cotentin and the Avranchin) and it certainly did not include the Channel Islands. But in 933 Rollo's son, William Longsword, after a victorious campaign against the Bretons, who were his neighbours on the west, obtained a cession from Raoul, King of France, of the Cotentin and the Avranchin.

It is quite possible, though not certain, that that second cession included the Channel Islands. Be that as it may, it is abundantly clear that very shortly afterwards all the Channel Islands were definitely part of the Duchy of Normandy. Whilst it is true that the first authentic reference to the Channel Islands as part of the Duchy was in the reign of Richard II, Duke of Normandy, we should not judge by that negative evidence alone and rule out the possibility of much earlier connections between these Islands and the Duchy.

Ducal family

Very little is known of the early history of the law or government or administration of any part of Normandy. The Ducal family was very vital, very numerous, and it was its policy to divide up its conquests amongst its loyal supporters. The history books are full of the struggles which went on amongst the various persons in close touch with the Ducal family, but on anything to do with government or law or administration, they are remarkably silent.

There is one incident in this first period to which I should briefly refer, because I think it shows two things: firstly how strong the Ducal family was, and secondly how much alliance with it was sought by other great powers in Europe. I refer to Emma of Normandy, who was a daughter of Richard, the third Duke of Normandy, and the great-aunt of William the Conqueror. She was the wife of two kings and the mother of two kings. She married Ethelred the Unready in the year 1002, she bore him a son, Edward the Confessor, founder of Westminster Abbey. On the death of Ethelred the Unready, she married Canute, the Danish King of England. She bore him a son, Hardicanute, King of England. After Hardicanute, Edward the Confessor became King of England.

It is clear that William was in close contact with Edward the Confessor and obtained, if it be true that he did obtain, the promise of the reversion to the Crown of England. As we know, it was in order to vindicate his claim to the Crown that William undertook the conquest which we are commemorating today.

Need for expansion

I think that the historians are all agreed that, altogether apart from his natural desire to make good that claim - and we all know the story as related in the Bayeux Tapestry - William had need to expand. He had need of more extensive territories and he had need of greater possibilities of rewarding his followers. The rich land of England, rich in soil, rich in wealth, was the obvious place to which he would turn.

I was fortunate, in seeking information to put before you today, to read in Sir Winston Churchill's History of the English-Speaking Peoples, in the chapter entitled "The Saxon Dusk", a masterly description of the Normans. Obviously it is an entirely unbiased opinion of a great historian who is not writing with an eye upon the events which I am trying to describe today. What Sir Winston says is this:-

"In Normandy a class of knights and nobles arose who held lands in return for military service, and sublet to inferior tenants upon the same basis. The Normans, with their craving for legality and logic, framed a general scheme of society, from which there soon emerged an excellent army. Order was strenuously enforced. No one but the Duke might build castles or fortify himself."

I think what comes next is important from the point of view that I am going to put before you:-

"The Court, or Curia of the Duke consisted of his household officials, of dignitaries of the Church, and of the more important tenants, who owed not only military service but also personal attendance at Court. Here the administration was centred. Respect for the decisions and interests of the Duke was maintained throughout Normandy by the Vicomtes, who were not merely collectors of taxes from the ducal estates, but also, in effect, prefects, in close touch with the Curia, superintending districts like English Counties. The Dukes of Normandy created relations with the Church which became a model for medieval Europe. They were the protectors and patrons of the monasteries in their domains. They welcomed the religious revival of the tenth century and secured the favour and support of its leaders."

Here, I think, perhaps the sting is in the tail :-

"But they made sure that Bishops and Abbots were ducal appointments. It was from this virile and well-organised land that the future rulers of England were to come."

Crown statement

I confess that when I reach this point in the story, I feel, as I think every Jerseyman must feel, some reluctance to put into words the respective importance of Normandy and England at that moment. But I am spared any difficulty in the matter because in the case of the Crown for the Minquiers and Ecrehos, which was fought before the International Court at the Hague in 1953, and in which Cecil Harrison played so distinguished a part, the Crown sets out the position in its own words.

"The Norman Conquest was, however, in no sense the migration of a race from one territory to another. During the 10th and 11th centuries the Norsemen (Normans) had firmly established themselves in Normandy, and consolidated a growing principality which admitted but a nominal suzerainty to French Kings. It was not their intention to abandon this rich conquest (which included the Channel Islands); and thus King William I of England devoted equal attention to both England and Normandy; his barons held large estates in both, and the principles offeudalism as practised in the Duchy were introduced into the newly-won kingdom."

That is the Crown's own appreciation of the position in 1066.

Now, how did we, in the Channel Islands, stand in that relation? We were the Norman subjects of the Duke who became King of England. We remained an integral part of the Duchy and we were included in the general scheme of ad¬ministration. There were close feudal and ecclesiastical ties which persisted both before and after the conquest. But, as I shall hope to show, something of vital importance was happening at the same time and no one quite knows why.

Development of law

There is no doubt that there had grown up very shortly after the conquest special customs in the Island. Whereas it is true, of course, that our law was and remained the law of Normandy, it was the law of Normandy as varied by certain insular customs. John Le Patourel says that the proof that these customs were of such great antiquity is shown by the fact that you will find even today, in the customs as we know them - I use his words - "fossils embedded in the customs of the 13th and 14th centuries which prove that these customs were in existence when the King of England and the Duke of Normandy were still one person."

To quote one example, one of these customs provides that the corn belonging to the King shall be transported by his vassals in Jersey to Normandy, which obviously could have no place in customs which arose after John had lost Normandy.

Now one thing we do know about this period before 1204, and we get it, as we do much of our information, from an ecclesiastical document. We know that before King John lost Normandy he had appointed a Warden. The first Warden of whom we have any knowledge was Pierre de Preaux. We know of him because he granted the Ecrehos to the Abbot of Val Richer. I think it is worth remembering him a little more fully.

He was, like so many Wardens, very often an absentee, and at the time of the loss of Normandy, in 1204, he had been entrusted by John with the custody of the Castle of the capital city of Rouen. He lost it to the King of France. Not unnaturally he lost all his lands in Normandy and he lost the Wardenship. I think we are glad to know, because I have always referred to him as good King John, in spite of what the English history books say, that John restored to him his lands in England.

Princess Matilda

There is one other "fossil" which I hope you will permit me to dig up. I do so very gladly because it allows me to pay tribute to a great Jersey historian, Major Rybot, who speaks of the foundation of the Abbaye de I'Islet, on the rock upon which Elizabeth Castle now stands. Major Rybot reminds us that our Duke at this time had become Henry II, King of England, who ruled an Empire which stretched from the Cheviots to the Pyrenees. His mother was Matilda, the daughter of Henry I.

She first married the Emperor of the West, and then Geoffrey of Anjou, to whom she bore a son, Henry II. The little Abbey was very richly endowed. Matilda decided that she wished to benefit another Abbey, the Abbey of our Lady of the Vow at Cherbourg. Our Abbey was reduced to a Priory and deprived of most of its endowments. The lands which were transferred from Jersey to Cherbourg included lands in England, Scotland, Normandy, Guernsey and Herm.

Here, in this Island of Jersey, was this little Abbey, which was endowed with what must have been the very rich benefactions which were transferred to Cherbourg, showing the closeness of the relationships which existed between all these constituent parts of the great Empire of Henry II at that time. Then comes 1204. John loses Continental Normandy. In exactly the same way as it is clear that William had to invade England in order to spread his wings, so the historians are surely right when they say that Philip Augustus of France had to get rid of John in order to spread his wings in what, after all, was his own kingdom, but which was so largely occupied by the King of England.

But Philip Augustus had, or thought he had, a good excuse for attacking John. He said that John had become King of England and Duke of Normandy and Count of all his other dominions by reason of the fact that he had brought about the death of Arthur, his nephew. Certainly Arthur was dead and it was because of the death of Arthur that John was King and Duke. John was driven out in 1204, and I think it is true to say that the real consequences of the conquest in relation to Jersey become evident from this point; bearing in mind that, as I have tried to show, the particular insular customs which remain embedded as "fossils" in our customs date from before 1204.

Remarkable faith in King John

In 1204 what was the policy of England towards these Islands? It was a most remarkable thing that we remained faithful to a King who had lost his Duchy, and that we abandoned our allegiance to the French King who had resumed the Duchy. It is clear that the policy of England was two-fold; first the Channel Islands became bastions of England against a hostile France. It is to that fact that we owe the erection of Mont Orgueil and of Castle Cornet.

It was essential to have a loyal population in all the Islands to support those Castles and their English garrisons. But from 1204 the Kings of England had another purpose also. They did not abandon all hope of recovering Normandy, and the best way in which to keep alive the claim to the Duchy was to continue to rule it according to Norman law.

We know, as an historical fact, that these Islands were not firmly held by the King of England until 1217, that is 13 years after the expulsion of John from Normandy. We know the Castles were built about that time. John, the dispossessed Duke, died in 1216, 12 years after being expelled from the Duchy. Then history, which up to that time has existed almost exclusively in ecclesiastical records, seems to come vividly to life, and there came into being three documents upon which much of our Constitution is based.

In 1218 Henry III, John's son, writes to Philippe D'Aubigny, his Warden:

"It is not our intention to institute new Assizes in the Islands at present, but it is our will that the Assizes which were observed there in the time of King Henry our Grandfather, of King Richard our Uncle, and the Lord King John our father, should be observed there now."

Three years later he writes to Philippe d'Aubigny, the younger, this very stringent command:

"Rule the Islands by right and due custom, as they have been accustomed to be ruled at the time of our ancestors, Kings of England."

Constitutions

In 1248 Henry III called upon the people of the Islands to declare what were the customs by which they claimed to be governed. I do not think it matters at all whether, as the people claimed, King John was the grantor of these Constitutions or not. I do not think it matters at all that many things which certainly were not in the original Constitutions were inserted later. We can easily discover what is real and what is false. But that the Constitutions existed is undoubted. As John Le Patourel says, the people who declared this solemnly before the King's justices in 1248 were people who were almost certainly alive when John is thought to have made the Constitutions.

Why should they, in presence of the King's Justices and in presence of each other, declare anything which was not true? What did they say that John did? First that he instituted twelve Coroners, sworn to keep the pleas and rights pertaining to the Crown; also that he constituted and granted, for the security of the Island, that the Bailiff from henceforth might by the view of the said Coroners, without a writ, hold certain pleas. That is the foundation of our constitution.

There are a number of other provisions, to which I need not refer. Did John, or whoever made the Constitutions, adopt something which existed previously? Or was it a new creation? I think that the system of twelve sworn Coroners, Juratos Coronatores, existed long before, and was merely incorporated by John in the Constitutions for the purpose of setting aside all doubt. It was very necessary to provide that the Bailiff could do these things, with the Jurats, without a writ, because it was becoming increasingly difficult for the King to send justices to administer justice in this Island.

He had none. The Justices he had were English Justices, who could be expected to know nothing of our language and less of our laws. So the creation of a system by which the Bailiff and Jurats would administer justice in the name of the Crown seems very sensible and seems very likely.

That there is confusion as to whether the offices of Warden and Bailiff were always distinct is true, and, of course, there is grave doubt as to when the Constitutions were made and as to what they actually contained. But the jewel in that crown surely is the consecration of a system of Bailiff and Jurats which has survived as the custodian of the liberties of this Island to this day.

No separation from Crown

I think it is also important to remember, as one turns to consider the development of the Royal favour towards these Islands, that in 1254 Henry III granted all these Islands to Edward, his son, then Lord of Aquitaine and the future King Edward I of England. The King ordered that these Islands were never to be separated from the English Crown, that no one by reason of this grant might at any time claim any right therein but that they should remain wholly to the King of England for ever.

I do not want to say too much about the law, but I think it is right to remember that at this time the law of Normandy, which the King had promised to observe and which the Bailiff and the Jurats were sworn to observe, was the Ancient Custom of Normandy, as varied by local custom. I think it is important to remember that Normandy was not then a country where there was a written Code. The commentaries on the customs were what we would call today text books compiled by members of the Court and legal practitioners.

There was no legislature capable of enacting laws. The Duke himself was the sole law-giver in his country, and all these customs and commentaries, important as they are, are merely the reduction to writing, for the guidance of all concerned, of that which had been decided by the King in his Curia. In I275, that is only 30 years or so after the Constitutions of King John, the Bailiff is ordered to hold all Assizes in the same way as other Bailiffs had held them in the past, and this (an obvious reference to the Jurats) in association with certain discreet and faithful men of the Island.

Royal seal

Then, in 1279, the King grants to the Bailiff the Seal engraved with his royal Arms. Be it noted there was only one Warden and there was only one Seal. The fact that there is now a Seal in each Bailiwick is due to the fact that, when the administration of justice came to be vested in the hands of a bailiff, by consent of the Warden, in Jersey and in Guernsey it was necessary to have two Seals.

Although there is no evidence of any royal authority having been obtained, it is true, I believe, that the Seal now used by the Bailiff dates from about 1300.

The right of the Bailiff to use these Arms was disputed when application was made for permission for the tug Duke of Normandy to wear the blue ensign, with the Arms of Edward I in the fly. The matter was referred to King Edward VII who, in 1907, sanctioned the continued use of these Arms by the Bailiff. I have always understood that the King desired that, when this decision was made known through the official channels, the Bailiff should be informed privately that the King, when consulted in the matter, had said, "God forbid that I should undo anything which good King Edward did."

In 1295 Otto de Grandison was appointed Lord Warden of the Islands. We had the misfortune to be misgoverned by him and his lieutenants until 1328. He did everything in his power to extract the last copper from the people of these Islands. By pleas of Quo Warranto the communities of the Islands were constantly called before justices itinerant to declare by what right they claimed to enjoy their privileges, rights and estates.

King's Bench protest

Naturally they protested. The Justices before whom these protests came adopted a very easy course; they referred the matter to the King in his Council in London. The Council in London could be as slow in those days as it can be today, if it wants to be. It did nothing; but the Islands went on protesting, and in 1333 they went to the King's Bench and they made their own Statement, the initial phrases of which are as follows:

"To our Lord the King and his Council, show his liege people the community of the Islands of Guernsey and Jersey that, whereas the Islands are, from of old, parcel of the Duchy of Normandy, and in such manner hold of our Lord the King as Duke,and in the said Islands they hold and use and have always used the custom of Normandy, which is called the Somme de Mancael, together with certain other customs used in the said Islands from time out of mind."

The "Somme" has been identified with the Grand Coutumier in its original Latin form. It is of the greatest importance to note in this statement the insistence upon the other customs used from time out of mind. The Wardenship of Otto de Grandison ended with his death in 1328. The last plea of Quo Warranto was held in 1331.

But still attempts were made to take individual cases out of the Islands for trial by the King's Bench in London. In 1368 such an attempt was made in an action of trespass, committed in Jersey, but it was defeated. The record runs thus:

"And since the matter aforesaid cannot be determined in this Court, because the Jurats of the said Island cannot come here with the Justices, and by right ought not to do so, nor should any other cause arising from the said Islands be determined save in accordance with the customs of the Island, therefore let the cause be placed in the Chancery of our Lord the King in order that a Commission from our Lord the King may issue for the hearing and determination of the said cause in the said Island, in accordance with the custom of the said Island."

Coke, commenting upon that judgment, writes:

"By this it appears that albeit the King's writ runneth not into these Islands, yet his Commission under the Great Seal doth, but the Commission must judge according to the laws and customs of the Island."

Interference ends

Here ended all claims of England to interfere with our judicature. From thenceforth, "every cause arising in this Island", and those are the operative words, must be tried and determined in this Island, saving an appeal to Her Majesty in Council. As we know, that is still the law and that is, I think, the foundation of our liberties. John Le Patourel writes these words:

"All the holes had been stopped up. Apart from petition to the Sovereign as a matter of grace, the exclusive jurisdiction of the Jurats was established. The Islanders therefore found judicial autonomy through the liberties of their Jurats as custodians of their customary law".

Now I want very rapidly to turn to two other subjects. Firstly, our liberty of trade. Our trade had been in fish with Normandy. We lost it entirely, and naturally, as good Channel Islanders, we said, "We must trade with someone; with whom shall we trade? We will trade with England." But the English customs authorities said: "No, you may trade with us if you like, but you must pay custom, you are foreigners." But we refused. We were not foreigners, but we were not subjects of the King of England, and, as so often happens, the wise policy was adopted of saying that we were "reputed" subjects of England and that, therefore, we could send our products to England free of all duty. We are still reputed subjects of the Queen, and we still import the products of this Island free of all duty into England.

Secondly, it was from the time of the loss of Normandy in 1204 that the Anglicising of this Island began. The immigration into this Island from England continues to this day.

I now turn to that which I described at the outset of this address as the second consequence of the conquest; namely that we have our own system of government, which is autonomous save in relation to our foreign affairs.

Absolute monarch

The Duke of Normandy was an absolute monarch. He ruled by himself in his Curia. Putting the clock forward many hundreds of years he might have said, as Louis XIV said, "L'Etat c'est moi".

So far as Jersey was concerned that was certainly the position when John lost Continental Normandy in 1204.

I have tried to show how the Royal Court, consisting of the Bailiff and Jurats, came into existence and how its powers grew. But, in the origin, the Royal Court was simply a Court of Justice, and, in no sense, a legislature. The Royal Court from a very early date made Ordinances, but, as reference to that which is contained in the Code of 1771 will show, they were largely what we could describe as municipal by-laws and as rules of judicial procedure.

But, feeling the need to speak with greater authority, the Bailiff and Jurats began to summon, when the occasion was appropriate, the Rectors and Constables of the 12 parishes to assist in their deliberations. It is from the Royal Court, thus augmented, that arose the Assembly of the States, which has its first separate entry in the records of this Island in the year 1497. A legislature had arisen which, in my view, was a direct consequence of the conquest.

But at the same time the Sovereign in Council claimed the prerogative right to legislate for Jersey without, of necessity, any prior consultation with the Island. Conflict was inevitable.

On 21 May 1679 His Majesty made known his pleasure and said:

"His Majesty's pleasure is that for the future all Orders, Warrants or Letters of what nature so ever shall not be put into execution in the Island until they have been presented to the Royal Court and published, and in case such Orders, Warrants or Letters shall be proved contrary to their Charters and liberties, and onerous to the said Island, the registration, execution and publication thereof shall be suspended by the Court until the case has been represented to His Majesty and his good pleasure thereon made known."

This Order was registered by the States on 3 July 1679, together with a protest or reservation by the Governor. It was repealed by an Order in Council made on 17 December 1679, which, in effect, limited the suspending power of the Royal Court to Orders, Warrants or Letters relating to the public Justice. That Order was duly registered by the Royal Court and, without any doubt, set out the extent of the suspending power then possessed by the Royal Court.

Fascinating, true story

May I finish with what I think is a fascinating, and perfectly true, story?

In the year 1769 the Island was in a very disturbed state due to the action of the States in allowing the export of corn, and the consequent rise in its price. Serious riots broke out. In consequence of these disturbances Colonel Bentinck (afterwards appointed Lieut-Governor) was sent to the Island with troops to restore order, to enquire into the causes of the discontent and to report on the whole matter to the Privy Council.

Colonel Bentinck was welcomed by the States, who appointed a Committee to assist him, and drew up a Code of Laws, which he despatched to the Privy Council in a ship which, unfortunately, was wrecked off Alderney. Thereupon Colonel Bentinck drew up what he himself described as a fresh transcript of the Code, which was duly confirmed by the famous Order in Council of 28 March 1771.

There was included in the Code, as thus confirmed, that upon which the suspending power of the Royal Court has ever since been based, namely, not the Order of December 1679, but the Order of May 1679, which, as we have seen, had in fact been repealed.

God bless Colonel Bentinck!

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