The
role of the Channel Islands in the development and application of Norman law
during the late middle ages and early modern period
Tim Thornton
Although
attention has been paid to the impact of continental Norman law on the Channel
Islands, the impact of the experience and practice of the islands themselves on
Norman law, more generally, has not been taken into consideration. This is
despite the fact that it is increasingly clear that, far from being isolated
from developments in continental Normandy, at the social, economic and
ecclesiastical level after 1204 the islands were directly involved in exchanges
in many contexts. In this paper the role of the islands is assessed in the
practice and development of Norman law in the period from the fifteenth century
to the seventeenth century.
1 In this short paper I intend to consider
briefly the history of Norman law in its relation to the Islands, and more
specifically the place and influence of the Islands within the wider Norman
legal context. The role of Norman customary law in Jersey and Guernsey has been
extensively discussed. Terrien’s commentary on the Ancienne Coutume was published in 1574 and was reprinted in 1578
and 1654. It was in Guernsey’s case the reference point for the limited
degree of codification achieved through the Approbation
des Loix in 1583, while Jersey remained more straightforwardly able to
refer to what ironically in same year was published on the mainland as the Coutume Reformée. Even after the
end of the 16th century, Island law across both Bailiwicks continued to develop
with reference to the practice of the mainland, including the Coutume Reformée, through the
commentators on it, Basnage, Bérault, Godefroy, and D’Aviron being
the main ones in the period before the 18th century. This might impact, as
Gordon Dawes has pointed out, via commentators like Laurent Carey, on Guernsey
law.[1]
2 This is, however, as Dawes indicates in
the same paper, usually taken as occurring through the presence of continental
Norman texts in insular libraries. It is about a one-way flow of influence
through a movement of printed paper, not an interchange of people and ideas.
More generally in the historiography, there is a generally accepted account of
the Norman connection being a residual one which would gradually fade and
eventually be replaced.[2]
3 It is perhaps particularly significant
that this historiography treats the Norman influence as external—legal
texts arrive from Normandy and are followed or not as the case may be. It is
especially the case in those authors, such as Eagleston, who see the Islands
following versions of the custom which were no longer the current ones
practised and followed in Normandy itself—so in Guernsey we might have a
situation of dependence on the ‘frozen’ traditions of the later
Middle Ages.
4 That is not to say that the influence of
the Customary Law of Normandy was not powerful. The advent of printing ensured
the ready availability of texts on Norman law, with editions appearing from the
presses of Rouen and elsewhere from the 1480s.[3] But it is
to say that this influence was external, in some senses residual, and
declining.
5 Now elsewhere I have argued that the
general assumption that the non-English possessions of the English crown became
more or less rapidly integrated or accommodated within a more unified whole is
misplaced. The implications of this assumption can be tracked even in the
historiography of the period before the 16th century, although it is not until
then that the tendency for integration and unification is usually seen to have
reached a peak. I have argued against this assumption with respect to aspects
of the history of the Isle of Man and of Wales;[4] more
directly relevant, here I have done so with respect to the history of the
Channel Islands, for example in terms of the operation of the diocese of
Coutances, and of English attitudes to Island government, legal and cultural
distinctiveness, at the most recent and previous Rencontres de Droit Normand.[5] In this article,
I want to consider briefly whether the history of Norman law in its relation to
the Islands is correctly characterised in those terms—external, residual,
and declining, at least in the period before the end of the 17th century.
6 Initially, we do need to emphasise that
there was a high point of interaction with Norman legal culture in the
centuries when overlordship of the Islands, and of mainland Normandy, rested in
the same hands, and this pattern continued in the subsequent decades in the 13th
and 14th centuries even when the exchequer at Caen had fallen under the control
of the French king. Although, as their insular status made inevitable, there
were significantly autonomous aspects to the exercise of jurisdiction in and
over the Islands, they were in these years ultimately part of a pattern of
jurisdiction and legal interactions which spanned Normandy, insular and
mainland. Even as late as 1328, as Le Patourel showed, it was the norm for
complex questions of interpretation (in this particular case over the rights of
a priest’s illegitimate children) to be referred to the bailli of the
Cotentin and his legal advisers. In 1309 the community of Jersey, and Philip de
Carteret, considered it was worth maintaining an attorney in mainland Normandy,
one Robert de Bruere.[6] Such
a provision was perhaps wise when it was possible, in spite of the Island’s
privileges, for its bailiff to be summoned to Coutances for, allegedly, the
faithful discharge of his duties.[7]
7 When it comes to considering the
traditional case for a decline from this relatively close relationship, it must
first be acknowledged that there is some basis for this claim in statements
made in England by sceptical commentators in the early modern period who felt
that the claim to be following Norman custom had become little more than a
cover for the capricious rule of the local oligarchy. Arguably from a position
of either ignorance or frustration, in 1580 it was stated in the English Privy
Council that justice was not being properly administered in Guernsey because of—
“the libertie, the Bailiffs and Jurats do take
unto them selves to directe their Judgements by presidents, wherein there is
neyther certainety nor rule of Justice . . . forsaking the Customarye
of Normandie.”[8]
8 There are, however, examples of
continuing legal interactions between mainland Normandy and the Islands.
9 This is evidently true of the period
before 1450, during much of which mainland Normandy was under the English crown’s
control, and then again in the 1460s specifically in Jersey when it was out of
the control of the English crown now that mainland Normandy was back under the
sway of the French crown. We have in too many spheres assumed that the
Lancastrian regime in Normandy was something distinct from their regime in the Islands.
The potential power of the Norman Exchequer in the first half of the 15th
century was such that it might be resented and resisted in the Islands. The
Guernsey précepte d’assize
of 30 September 1441 sets out the rights of the Islanders as they were then
understood (rather inaccurately) in relation to the determination of the extente of 1331. It includes a provision
against Islanders being compelled to go out of the Islands on an appeal or
otherwise to the duchy of Normandy and to the Exchequer at Rouen—
“pour cause
que anciennement les appellations et applegements en la dicte duche de
Normandie estoient et soulloient estre determines entierement a leschiquer a
Rouan sy ne voulut point soufrir nostre dit Seygnour le Roy duc de Normandie,
comme dessus est dit, nostre Souverain et liege Seygnour que james ses dicts
hommes subjects et lieges fussent et deussent estre constraintz et compellez
par aulcun breff de Roy, ne aultrement, de yssir ne aller hors de la dicte ysle
Mes accorda et conceda iceluy noble Roy que tous les cas dessus ditz fussent et
deussent estre cougneus mis affin et determines en la dicte ysle, par devant
les Justices de nostre dit Souverain Seygnour le Roy yllenquez transmis et mandes
avec les douze Jures de la dicte ysle, qui cognoissent et sayvent les
accoustumancez et anciens usages de la dicte ysle.”[9]
There is, nonetheless, the intriguing possibility of
the activity of Channel Islanders in Rouen, at the Norman Exchequer, as for example
in the possible action of John Neele there on behalf of the abbot and convent
of the Our Lady of the Vow, Cherbourg, in the autumn of 1448.[10] It
seems unlikely that those involved in the creation of the précepte would have been concerned to deny the possibility
of unwilling involvement in mainland Norman courts if there were no
contemporary potential, at least, for its occurrence.
10 This direct connection with mainland
Normandy is also evidently true of the ecclesiastical sphere, through to the
1570s. Ecclesiastical jurisdiction was of course a distinct sphere, but
separate though it was it maintained the normality of interaction with mainland
Normandy in important matters of administration and dispute resolution. The
records of the diocese of Coutances clearly indicate a continuity of
jurisdiction into the early 16th century. This includes the evident fact that
the clergy of the Islands were, overwhelmingly, progressed through minor and
major orders, more or less quickly and to a variety of levels, via Coutances’ administration. As
an example, Nicolas Despestys, who originated at St Lawrence, Jersey, was
ordained at St Lo by Geoffrey Herbert, bishop of Coutances on 2 April 1491 and
became, on the presentation of the bishop himself, rector of the church of St
Mary, Jersey, in December 1501.[11]
11 Of course, not all the business
conducted via Coutances was
uncomplicated and uncontested. There is evidence of conflicts between patrons:
Jean l’Arbalestrier was presented to Trinity in 1529 by the captain of Jersey;
meanwhile Robert Guillemelles was presented on 17 August by Leobin, abbot of Our
Lady of the Vow, Cherbourg, telling the bishop of Coutances that the
patronage belonged to the abbey and the foundation of St Helier; on 22 August,
the vicar general of Coutances refused to confer Trinity on l’Arbalestrier.
Yet it was l’Arbalestrier who seems to have been successful, in that he
was commissioned as Dean in August 1532 by Guillaume Quetil, the bishop’s
vicar general.[12] In
1491, it was the chapter of Coutances which was successful, presenting
André Murdrac to Alderney on the nomination of Thibault de Fromentiers, penitentiary
and canon of the cathedral; Governor David Philip presented Guillaume Fabien,
but the vicar general turned him down.[13]
12 There is of course no doubt that periods
of war between England and France could affect the reality of Coutances
jurisdiction. The relative absence of administrative activity there in 1488,
its complete disappearance in 1489 and limited activity in 1490 seems to correlate
with the Anglo-French hostilities in Brittany in those years. Business only
reaches a height in 1496, to fall again in 1497, no doubt in reaction to the
troubles of that year, again some of the most acute of which affected the
western approaches to the Channel. By contrast, the consistently high levels of
activity through the first decade of the 16th century reflect the peace of that
time between France and England. The more bellicose policy of Henry VIII from
1511 is also apparent in its effects on the pattern of business, with low
levels of activity evident in 1511–1513 in particular, and then again in
1521–1524 at a time of English invasions and fears of conflict in
Normandy itself. Still, the notable thing is perhaps the resilience of the
jurisdictional relationship even in times of tension between the crowns. The
evident need for continued contact even in time of war is suggested by the safe
conduct given by Louis Malet, seigneur of Granville, to Guillaume Fabien priest
of Alderney and to his fellow Islanders in 1513.[14]
13 Further periods of restricted
interaction with Coutances jurisdiction are apparent during other Anglo-French
conflicts in Henry’s reign. In spite of these hostilities, however, and
even more remarkably in spite of the break with Rome, and the slightly more
awkward reality of an ecclesiastical jurisdiction which acknowledged the pope
while the lay authorities did not, the relationship remained real through to
the end of Henry VIII’s reign. But in the reign of Edward VI, the more
aggressively protestant regime rapidly ended the link, only for it to be
restored quickly under Mary and for it to continue in the early years of
Elizabeth I. The final appearances of the Islands in the registers of Coutances
occur in 1568 and in 1571.[15]
14 These were, however, an appendix to the
medieval chapter in the history of Coutances and the Islands, in a world which
had been transformed by religious conflict and the emergence of the reformed
church in both Islands and mainland. It may only have been in 1567 that the
local Island consistories acknowledged the supremacy of the bishop of
Winchester, a year before a letter from the Council formally ended the
authority of Coutances and imposed that of Winchester. But the early 1560s had
seen an upsurge of Protestant activity in both Islands and mainland, and strong
connections between them. This was very much an expression of continuity of
contact in this important context for insular and mainland Norman life and law
beyond the ecclesiastical sphere.
15 What is most striking, therefore, is the
continuing interaction between the legal systems of mainland Normandy and the Islands
from the mid-16th century onwards.
16 There is, for example, the remarkable
case, recounted for us in the pages of the Chroniques
de Jersey, from the early part of the reign of Mary. While admittedly an
isolated survival in terms of evidence, there is nothing in the way the account
is provided to suggest there was anything particularly exceptional about the
events described. Several members of the garrison at Mont Orgueil, led by one
Thomas Cook, and including William Moore, William Smythe, Thomas Sayer, John
Gullin and Walter Maxwell, committed an extremely audacious crime. They robbed
the Island’s bailiff, Helier de Carteret, and another man, one Nicholas
Hue. They took from the bailiff his gold chain and four silver cups, as well as
24 spoons and 500 escus in coin of gold and silver.
17 The group of criminals took their booty
from the bailiff’s house and headed for Bouley Bay. There they forced a
seaman called Thomas Patron to sail them to Normandy, landing in Portbail. The
very same night of the robbery, a merchant of Portbail named Gilles Monchet
happened to be in Jersey, heard of the crime and knew the individuals involved.
After his return to Normandy, being in Coutances on business, he noticed Thomas
Cook in the Cohue (the precincts of the court). Monchet therefore went
straightaway to the bailli of the Cotentin, who was sitting in Coutances, and
told him of the affair; the bailli responded by immediately ordering the arrest
of the robbers.
18 There was then a near-pitched battle,
with the community of Coutances taking all but one of the robbers. The bailli
had them imprisoned in the conciergerie of the town, and he recovered many of
the goods of the bailiff, including the gold chain and silver cups. News of the
arrest reached Jersey and the bailiff and the lieutenant there sent to the
bailli of the Cotentin to have the robbers extradited to Jersey. He, however,
refused, saying it would be done only with the permission and good will of the
king of France. Here the accounts of the Chronicles and of the English
government record diverge. The former says the Jersey authorities had to make a
request via the French ambassador in
England—which was successful, resulting in the rendition of the suspects
back to the Island, where they were found guilty and executed. The goods,
however, were never recovered. The latter shows that the Privy Council
contacted Sir John Mason, ambassador in Paris, for his intervention.[16]
19 However it was achieved, in this case,
fugitives from the Islands were arrested in the Cotentin, indeed they were
arrested in a display of community collective action; what was considered
remarkable at this time was the fact that having been arrested they were not
extradited as a matter of course. The assumption betrayed by the text is
clearly that in more normal circumstances extradition would naturally have
followed arrest. The outcome in this case is even more striking given that the
criminals were thought to be offering the continental Norman authorities that they
would betray Mont Orgueil.
20 In practice, evidence suggests a
continuing practice of referring contentious issues to Rouen. For example, the
case of a ship abandoned off Sark in 1608 was taken to Rouen in an attempt to
resolve the difficult issues relating to choses
gaives which it raised.[17]
That May, one Monday, a ship of four hundred tons or more dropped anchor near
Sark, and its crew abandoned it; fishermen boarded on Tuesday and found no one
on board—
“. . . dedans lequel ne trouuerent personne. Dont fort estonnez vindrent aussi
tost auertir le gouuerneur de ladite Isle de Grenesey, lequel fit le lendemain
amener le nauire en ladite Isle. Et pour la perplexité en laquelle se trouua le Procureur du Roy dudit
lieu, de ce qu’on deuoit faire dudit nauire & a qui il le falloit
adiuger, & dautant qu’en ladite Isle qui appartient au Roy d’Angleterre
on vse de la Coustume de Normandie, il enuoya vn Factum de cecy en cette ville
de Roüen, pour
estre consulté au siege
general de l’Admirauté en la
table de marbre, & aux Aduocats de la Cour. Surquoy ie fus d’auis
auec quelques vns que ce n’estoit point varech.”
[. . . in which
nobody was found. Very much affected by this, those that found the ship quickly
came to advise the governor of the said Isle of Guernsey, who the following day
had the boat brought to the said Isle. And because the Procureur du Roy of the
said place was perplexed, as to what was to be done in regard to the said ship,
and to whom it was necessary to give it in judgment, and since in the said
Isle, which belongs to the King of England, the Custom of Normandy is used, he sent
a statement of the facts of all this to this city of Rouen, to consult the judges
and advocates of the Court of the Admiral. On which matter, I was of the
opinion with others that this was not a case of varech (wreck).]
This was reported in
Josias Berault’s La
Covstvme reformée du pays et duché de Normandie, from its
first edition in 1612 through its fourth in 1632 and beyond one of the major
texts on the subject.[18]
21 Clearly, this is not an appeal to Rouen
in the formal sense, and it is not an attempt to take the case into any of the
mainland Norman courts. But it is a sign that where the Island authorities were
uncertain as to the correct application of customary law they might look to
those who practised it in Rouen for an opinion. And Berault would have known,
perhaps even personally have been consulted on this occasion, for he was “conseiller aux sieges de l’Admirauté & eaux & forests en la table de
marbre du Palais à Rouën & aduocat au Parlement de Normandie”.
Berault’s work is interesting in this respect for it demonstrates a ready
willingness to reference the Islands in other respects too, for example (albeit
unconvincingly) in explaining the derivation of varech from vraich, or
seaweed, “de laquelle vsent les
habitans des Isles de Gersey & Grenesey au lieu de bois & pour se
chauffer”, and expanding on its plentiful growth there, in a way that
implies he had witnessed the foreshore of the Islands himself.[19]
22 Another part of this story is to be
found in the activity of Island students, especially once the University of
Caen was founded. Stephen le Bally of St Andrew in the Isles is clearly
described as such in the university’s records in 1537, and it seems
likely that many other Islanders studied there, relatively anonymous behind
their typical names and the uncommunicative record.[20] It is
surely a possibility that many of the Islands’ clergy and other members
of the population had studied at Caen. And it is worth remembering that it was
civil and canon law which was the initial focus of the University of Caen.[21]
23 It is perhaps too easy also, from an
English perspective, to fall into a view of the Islands as economically primarily
and predominantly associated with England. There is no avoiding, for example,
their characterisation in recent work as a key point in the maritime networks
between the French South West and England. We are very fortunate in having the
remarkably complete records of the English customs system to thank—or to
blame—for this. It is salutary to remember, however, that by the 1660s
240,000 pairs of stockings were being exported annually from the Islands into
France, most of the production; perhaps 1000–2000 pairs per year went
into England.[22]
24 It appears clear that Guernsey’s
Royal Court in the later 16th century looked to the French edict on the
concealment of pregnancies and infanticide of 1557 to inform prosecutions
coming before it. Indeed the Island’s Bailiff and Jurats remained au courant with developments in Normandy
and France more generally.[23]
25 The implications of these findings are
significant. Political separation does not lead to legal separation. This
explains the continuing influence of Norman law—there is some external
reference point, it can grow and develop. The Islands certainly did not need
English law to provide fresh and innovative responses to insular Norman
challenges.
26 This also provides an interesting
context for the attitude of the English authorities in Westminster. Their
overwhelming concern to ensure the proper functioning of the local legal system
according to the privileges of the Islands needs to be seen not as the
preservation in aspic of an archaism—perhaps as a way of subordinating
and limiting the development of their societies[24]—but
as a conscious support for a vibrant legal culture with key roots in Rouen,
Caen and the rest of mainland Normandy. The Order in Council of 9 October 1580
that initiated the process of the Approbation
des Loix was mainly concerned with the current presentation of the
customary, “whereunto they should holde them selves”. On several
occasions when the English Privy Council became involved in cases from the Islands,
either through appeals or doléance,
it made a point of its eagerness to abide by local law and custom, and
sometimes explicitly extended this reference point to the law of continental
Normandy. In September 1620, for example, considering a case relating to wine
found floating in the sea off Jersey, the Council noted that it had been shown
no deed or grant to support the rights to it of Hugh Lempriere, seigneur of
Dielament, but they set this aside—
“forasmuch as it appeareth by good probabilitie
that both there and in Normandie the practize hath ben very ancient to divyde
things found floatinge at sea, and thence brought by the fynders to launde,
into three parts . . . [and so] wee conceave this course of division
to bee in all respects most justifyable and fittest to bee observed for the
wynes presently controverted.”[25]
27 To what extent does this show the
Normans were still looking to an Anglo-Norman past; and that the English were
looking to their Norman past? For the English regime this was an aspect of the
richness of the complex of territories over which their monarch held sway. It
was not a matter of concern, or confusion, or shame, that their king had
amongst his territories vibrant communities which were part of the culture of
Norman law. Historians of the English Reformation have recognised aspects of
this in a parallel case in the way in which Henry VIII and his protestant
successors found encouragement in a history of Welsh religion and associated
cultural and social phenomena, most notably the Welsh language, which they
could argue, however speciously, gave an ancient pedigree to insular leadership
in religion.[26] In
a similar way, English monarchs’ support for the vigour of the Norman
legal culture of the Islands helped to support their claim to the duchy more
generally, and potentially to the French throne itself; that they ruled a
multiplicity of systems might be sign of their might rather than their
weakness; and it emphasised the antiquity of their descent and that of the
political systems over which they presided.
28 When we appreciate the liveliness of the
Norman legal culture of the Islands, we can understand better, too, the rawness
of the sense of loss expressed in so many Norman texts in the early modern
period. Toustain de Billy’s 17th-century “Histoire du Costentin et de ses villes” listed the Coutances
deaneries and indicated, at the end, “on
doit ajouter ceux de Gerzay & de garnsezay quoique les Anglois les ayant
usurpées”. The diocese had once had more than 500
parishes, but the English “ont
volé 24”.[27] The
“Nouvelle histoire universelle et
chronologique du Grand Baliage du Cotentin” of Francois le Franc, a
former vicar general of the diocese, included a listing of all the Islands,
noting the change of religion that affected Jersey and Guernsey, and included
events such as the alleged crowning of Henry Beauchamp as king of the Isles
under Henry VI.[28] For
continental Normans this was not a distant divorce fading from memory, but a
partial and ongoing separation.
Professor Tim
Thornton is Deputy Vice-Chancellor at the University of Huddersfield.