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"Lé Rouai,
Nouot’ Duc"[1]
Paul
Matthews
Introduction
Every Channel Islander knows that the Queen (or
King) of England is also the Duke of Normandy [2] . But is that really right? Does the medieval title of
"Duke of Normandy" still exist? And, if it does, is it really the
Queen who holds it? There is a wealth of historical and legal material,
spanning at least three different jurisdictions, bearing on the point. As
there is enough here for several doctoral theses, constraints of time and
space mean that this article can only include the barest summary. Historians
will shudder. But lawyers have a living to earn.
History
By three grants, in 911, 924 and 933, French
"Kings" ceded the area of France now known
as Normandy to Scandinavian invaders. Their leader became known as dux,
or duke, of Normandy. The boundaries of the areas ceded are imprecise [3], and there is no clear evidence that they included the
Channel Islands, which the Normans may simply have
taken by force from whoever was occupying them [4] .
William of Normandy succeeded his father Robert as
Duke in 1035. In 1066 he became King of England, by conquest if not also by
nomination of Edward the Confessor [5] . It would be
simple if we could say that every king (and queen regnant) of England since
then has also been Duke of Normandy. But it would not be true. It was not
even true when King William died. At the time of the Conquest, Normandy was part of France, and the
Dukes of Normandy were (at least nominally) vassals of the Kings of France [6] . England was another matter, and its King was no
man’s vassal. On William’s death in 1087, his eldest son Robert (Curthose)
became Duke of Normandy, whilst his second son William
(Rufus) became King of England [7] . William died a
bachelor in 1100 in mysterious circumstances in the New Forest. A third son,
Henry (Beauclerc) usurped the English throne from his elder brother [8] . Six years later, he deposed
Robert as Duke of Normandy as well, depriving Robert’s son (William Clito) of
his inheritance in the process.
When King (and Duke) Henry died in 1135, he intended his daughter
Matilda (or Maud) to succeed him in both titles [9] .
But his nephew Stephen of Blois, preferred by the barons [10],
fought a civil war with his cousin, and made himself king and duke. On the
other hand, Matilda’s second husband, Geoffrey Count
of Anjou, managed to depose Stephen as Duke of Normandy, and himself became duke
in right of his wife [11] . Indeed, in 1149-1150,
during his own lifetime, he transmitted the title to
their son Henry [12] . A deal was struck with Stephen,
whose eldest son Eustace had died [13]
. Stephen would remain king for his life, but Henry would succeed him on his
death. Stephen died in 1154, and Henry at the age of 21 became King Henry II of England. He was now Duke of Normandy,
Count of Anjou since his father’s death in 1151, and also Duke of Acquitaine
in right of his own wife Eleanor. [14]
This valuable collection of French fiefs in the
hands of a single determined individual [15] would have seemed alarming to the French king. At
this time French kings were weak, and their vassals strong [16] . How much
territory the French king was really king of depended on many factors. But in
practice it was very much smaller than modern day France
[17] . To have a powerful foreign king as a nominal
vassal in many different parts of what you claimed as your kingdom was both
difficult and dangerous. King Philippe Auguste (who had succeeded to the French throne in 1180) therefore encouraged
Henry’s four sons, Henry the younger [18], Richard,
Geoffrey and John, to revolt against their father. In truth they needed little encouragement in this [19]
. Geoffrey (whom he courted first) [20]
died in 1186, in his father’s lifetime. He left a posthumous son, Arthur.
Philippe Auguste turned his attention to Richard (The
Lionheart) [21] . Henry died in 1189, to be
succeeded by Richard. But Richard was rarely in England, being more
interested in the Crusades to the Holy Land. He caused Philippe Auguste
little bother. After Richard’s death in 1199, John usurped the place of his
young nephew Arthur and became king. Geoffrey’s widow was the heiress of the
Duke of Brittany, to which title Arthur in due course succeeded.
Philippe Auguste now turned his attention to
John. In 1202 he required John to come to France and
appear before the Court of the French barons at Paris, to answer claims of breach
of feudal obligations [22] . John refused. Philippe
Auguste was thus able to claim before the peers of France that all John’s
French possessions were forfeit to the French crown [23] . With Duke Arthur’s assistance, Philippe swept into
Normandy and Anjou and drove John from the mainland of
northern France by 1204 [24] . He even managed to
occupy the Channel Islands, on at least two occasions.
But only temporarily [25] . The French did so well
against John that, with the support of the Pope (who had ordered John’s "deposition"), they even
contemplated invading England [26] . However, in 1216
John died, to be succeeded by his own son King Henry III. The threat of
invasion receded.
But Henry III did not give up the claim to
continental Normandy. For much of his reign he was certainly described in
legal documents as Duke of Normandy, even though the only parts of the Duchy
still remaining even nominally under his control were the Channel Islands. In
his confirmatory charter of 1223 [27],
for example, Henry is described as King of England, Lord of Ireland, Duke of
Normandy, Duke of Guyan (Guyenne, i.e. Acquitaine) and Earl of Anjou. He was similarly described in a Royal Writ issued to the
Warden of the Channel Islands in 1248, requiring him to inquire into the laws
instituted there by King John [28] . In 1254 Henry
conferred an apanage on his elder son Edward, granting him all his remaining
French territories - including the Channel Islands - on terms "that they
should never be separated from the Crown... but should
remain to the Kings of England in their entirety for ever." [29]
The Anglo-French conflict over Normandy dragged
on until 1259, when the Treaty of Paris was signed. By
this treaty Henry, concerned to protect his more valuable interests in
Acquitaine, expressly gave up all claim to Normandy [30],
and never thereafter called himself Duke [31] . If matters rested there, there would be no question
of any English sovereign thereafter having legal right to the title Duke of
Normandy. It is true that Henry’s son Edward protested
at his father’s action, both then and once he had become king in 1272 [32] . But Edward subsequently became Count of Ponthieu in right of his wife [33],
and Normandy became less important to him. So he too renounced any claim he might have had to Normandy, in the Treaty of
Amiens in 1279 [34] . Consistently
with this, in the legal text known as Britton [35], in his own confirmation of
Magna Carta, in 1297 [36], and in other legal
documents, such as a nomination of commissioners to
hear a case in Jersey in 1305 [37], Edward I was
described as King of England, Lord of Ireland, and Duke of Guyan, but (unlike
his father in 1223 and 1248) neither as Duke of Normandy, nor as Earl of
Anjou. This does not mean that the status of the
Channel Islands changed [38] . But from now on
their overlord was King of England, not Duke of Normandy, and, whatever the French of the time may have thought [39], any nominal suzerainty of the King of France had gone. [40]
As Shakespeare might say, the scene now moves to
France. In 1314 the King of France, Philippe IV (Le Bel) died, leaving three
sons and a daughter. These three sons were to become known
as Les Rois Maudits [41] . Philippe’s
wife, their mother (who had predeceased her husband) had been Queen of
Navarre and Countess of Champagne in her own right. Philippe’s eldest son
became King Louis X. He died in 1316, leaving a daughter Jeanne, aged 5, and
a posthumous son (Jean) who lived only a few days. Jeanne’s claim to succeed
her baby brother was ignored in favour of her uncle,
Philippe Le Bel’s second son, also called Philippe (Le Long) [42]
. Philippe was hurriedly crowned King Philippe V. An assembly of nobles,
called for the purpose, approved the coronation:
"Etiam declaratum fuit quod ad coronam
Franciae mulier non succedit". [43]
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In dynastic terms, this king fared no better. He
died in 1322, also leaving a daughter, but no son. The circumstances of the
father’s succession hence excluded the daughter. So the third brother, Charles, became king. He reigned until 1328, when
he died. He too left a posthumous daughter, but again no son. Jeanne, the
daughter of Louis X, was now seventeen, but (given the declaration of 1317)
it was too late for her. Philippe Le Bel’s fourth child was a daughter,
Isabelle. She had married King Edward II of England, the weak son of Edward
I. Edward II had died the year before, and their son, the young Edward III,
was now the King of England. Edward was thus the nephew of the last three
French kings. That made him their nearest male heir. He was not - like Jeanne
- a woman. But he was descended through a woman. And - much worse -
he was the king of a deadly rival kingdom. Small surprise, therefore, that
the nobles of France instead supported the late king’s first cousin, Philippe
De Valois, to become King Philippe VI. Edward was excluded expressly because
he claimed through a woman:
"Quod si dictus filius izabellae haberet aliquod jus in regno, hoc sibi naturalitur accederit
ratione matris; ubi ergo mater nullum jus haberet, per consequens nec
filius..." [44]
So Edward III of England was passed over as King
of France. His mother, Queen Isabelle, on his behalf sent envoys to protest.
But to no avail [45] . The claim
appears to have been dropped. In 1328 Edward was only sixteen. Indeed, he did
homage to Philippe De Valois for his French fiefs, including Acquitaine [46] . But later on
resentment grew (as it does). Within a few years his claim to the French
throne itself led directly to the Hundred Years’ War. Historians have debated the causes of this war [47]
. Was it feudal, in that Edward III disliked doing homage to another king,
his equal? Or was it dynastic, in that Edward resented being passed over for
the French throne? Did Edward mean his claim to be taken seriously? Or was it
just a diplomatic or negotiating tactic to obtain concessions elsewhere? From
the point of view of this article, it does not matter
very much.
What we should note is that from 1332 onwards Philippe De Valois, now King Philippe VI,
gave his son Jean (later King Jean II Le Bon) the title Duke of Normandy [48] . Even Froissart, a fairly objective, even
anglophile, observer of events, so refers to him in his Chronicles [49] . So it is clear that he was
so known. And, once Jean succeeded his father as king in 1350, he conferred
on his own eldest son Charles (later Charles V Le Sage) the title
Duke of Normandy in his turn. Froissart again followed
suit. [50]
In 1332 no one on the English side appears to
have sought to be called Duke of Normandy [51] . Indeed Edward III did not claim the title of King
of France until 1341 [52] . It
was only about a quarter of a century later, about 1357, during his campaigns
in Normandy, that Edward III of England appears for a short time to have used the title [53] . But
unlike the kings of France, who gave it to their eldest sons, Edward kept the
title for himself, and did not give it to his own son, the Black Prince.
Understandably enough, Edward in his military campaign was seeking to trade
on the family association with the surrounding area, despite the fact that it
was over a hundred years since any of his ancestors had used the title. In
any event the use of the title was ambiguous. Was Edward claiming to be Duke
through his father, as successor to King John? Or was he claiming to be Duke
through his mother, ie as successor to King Philippe Auguste, who had taken
back Normandy for himself? Whatever the position, it
appears the use of the title was tactical rather than heartfelt [54] . For only a few years later, in the Treaty of
Bretigny, in 1360, King Edward III, like his grandfather and great
grandfather before him, settled for guarantees about Acquitaine in return for
agreeing to give up all claim to France itself and to
mainland Normandy [55] . For the
third time in a century, an English king in a solemn treaty put Acquitaine
first and renounced, for himself and his successors, the title of Duke of Normandy [56] . But the Channel
Islands themselves continued to be held by the English King and, whatever the
previous position [57], for the
future it would be in full ownership [58]
.
Bretigny marked a pause in the Hundred Years’
War. It did not mark its end. Recriminations on each side, about the other
keeping its terms, led in due course to Edward III’s announcement
in 1369 that he was retaking the name and title of King of France [59], and then to a resumption of hostilities [60] . This reached a pitch during
the reign of King Henry V, 1413 - 1422. The Black Prince had died before
becoming king, and his own son, Richard II, had been deposed in 1399 by his
cousin Bolingbroke (Henry IV), the father of King Henry V. Henry V was thus
the grandson of John of Gaunt, and the great grandson of King Edward III.
Henry however pressed his claim, not be to Duke of Normandy [61], but to be
King of France. Shakespeare makes Henry V say
"Cheerly to sea, the signs of war
advance:
No King of England, if not King of France". [62]
This is not just a great exit line. It accurately
encapsulates the dynastic argument according to which the English king was also the person entitled to the French throne, and that the
Valois kings were usurpers. In making his claim to the throne of France,
Henry was met - seemingly for the first time - with reliance by King Charles
VI "Le Fou" (grandson of Jean II Le Bon) on the Salic Law. We will
return briefly to this issue later. Henry invaded France
and (inter alia) won the battle of Agincourt in 1415. English statutes at the
time refer to him as "King of England and France, and Lord of
Ireland" [63] . Not Duke of Normandy. It is true
that, in the period 1417 to 1419, during his campaigns in France, he did
refer to himself locally as the Duke of Normandy [64] . But, as with his great grandfather, this may well
have been a practical approach.
In 1420 the victorious King Henry V entered the
Treaty of Troyes with King Charles VI. This achieved everything that Henry
wanted. He married Charles’ daughter Catharine, and was recognised as heir to
the French throne after the death of Charles. Charles VI’s son, the Dauphin
(also Charles) was disinherited. Two very important
features of the Treaty of Troyes should be noted. First, Henry no longer
claimed to be King of France [65] . Instead he claimed
to be heir to the King of France. So he no longer attacked the title
of the French king. Instead he claimed through
it. Secondly, mainland Normandy was in future to be treated in legal
terms as a part of France [66] . Once Henry
became King of France [67], it
was to go where France went, and not separately. Until then, it was to be
retained by Henry in his own hands [68]
. But the Treaty left the Channel Islands in the hands of the English King as
King; they were not rejoined to continental Normandy [69] . The Treaty was bitterly attacked by Charles the
Dauphin, and with reason, since it disinherited him. Unfortunately, Henry V
died in 1422, shortly after the birth of his son (who became King Henry VI),
and shortly before the French King Charles VI himself.
On the death of Charles VI, mainland Normandy was indeed
reunited with France [70] . No attempt appears ever to
have been made to reintegrate the Channel Islands into Normandy, let alone
into France itself. We will never know what would have happened had Henry V
survived.
What did happen was a continuation of
the Hundred Years’ War. Inevitably, those supporting Henry VI claimed him,
following the treaty of Troyes, to be King of France as well as of England.
No separate claim to be Duke of Normandy can be found [71] . Given the favourable terms of the Treaty of Troyes,
it would be surprising if any were made. Nevertheless,
distinctions between France generally and Normandy in particular were
occasionally found [72] . It is unclear whether these
had any greater significance than the purely geographical. At that point in
the war, the English retained physical control of Normandy, but not all of
France. There was accordingly reason why some English statutes should
expressly purport to have effect in Normandy, but not in the rest of France.
The French, meanwhile, aided by Jeanne D’Arc, made gains. They retook Paris
in 1436, and, after the battle of Formigny in 1450, managed to seize back the
territory of mainland Normandy. Thereafter, the only Dukes of Normandy so
called are found on the French side. They include Charles
de Berry (brother of Louis XI) for a few months in 1465 to 1466, and
(centuries later) Louis Charles, the second son of Louis XVI and Marie
Antoinette, who from his birth in 1785, until the death in 1789 of his elder
brother, the Dauphin, had borne the title of Duke of Normandy. [73]
We have seen how the titles claimed by English
(and French) monarchs varied over the late medieval period. It would be
sensible to complete the picture by bringing the claiming of titles more or
less up to date. All English monarchs from Henry VI on
[74], without exception, claimed the title of
"King (or Queen) of France", until the Treaty
of Amiens in 1802, by which the claim to that title was formally abandoned [75] . However I can
trace no claim by any of them to be Duke of Normandy. This is hardly
surprising, as such a claim would be inconsistent with the treaties of Paris,
Bretigny, Amiens and of course Troyes, under which the clearest title to be
King of France arose. Thus, in an Order in Council of
Henry VII [76], the Jersey record shows that Thomas
Lemprière was "Bailli de notre Souverain Sire le Roi d’Angleterre en
l’Ile de Jersey." In the body of the Order a reference was made to
"the subjects of the King of the said Island." Similarly, Orders in
Council of King Henry VIII in 1541, addressed (in Latin) to "Hillary
Delaroque, lieutenant of the bailiff of our Island of Jersey", referred
to the King simply as "King of England and of France, Defender of the
Faith, Lord of Ireland and Head of the Anglican Church
on Earth. [77] " And, in another Jersey court
document referring to a Jersey family, King Philip and Queen Mary were
described as King and Queen of England, France, Naples, Jerusalem and
Ireland, and many other princely and noble titles too, but nothing at all in relation to Normandy [78] . The charters to Jersey of later
monarchs [79] show only that they claimed to be
Kings (or Queens) of England and France, and Lords of Ireland. None of them
claimed to be Duke of Normandy. The Charter of Queen
Elizabeth I [80] makes some references to Dukes of
Normandy, in confirming earlier charters and grants "of our said
progenitors formerly Kings of England and Dukes of Normandy", and in
reserving rights due "by the prerogative of our Crown of England or the
Dukedom of Normandy or otherwise". But there is no suggestion whatever
that she claimed herself to be Duke. Subsequent Royal Charters are to similar
effect.
As against that, there are letters patent of
King James in 1615 [81], recording
the decision of the Privy Council in a dispute about the right of nomination
of Bailiff. Although the opening words in giving his titles refer only to
James being king (of England, Scotland, France and
Ireland), there is in the body of the document a phrase referring to
"Us our heyres & succes[sors] Kinges of
this Realme of England and Duckes of Normandie…."
The act of the Royal Court enrolling these letters patent [82] also referred to
King James I as "Le Roy d’Angleterre et Duc de Normandie
&c". In addition there is an extract [83] (probably made in 1617) from the rolls of the Royal
Court referring to the king as "Roy de la Grande Bretagne France et
Irlande et Duc de Normandie defenseur de la Foy etc". The first of
these appears to be an isolated incident, and the others are local actions by
Jersey officials, and not consistent with royal claims. However, Advocate
Raoul Lemprière has described an incident at the
coronation of King George III where a person apparently "representing
the Duke of Normandy" took part in the ceremony [84]
. Unfortunately, I have been unable to trace the source of this statement, or
any contemporary evidence supporting it [85] . This is meagre support indeed for a claim to the
subsistence of the title "Duke of Normandy" in the English
sovereign.
The titles of English kings and queens since
1802 make reference to diverse other territories, from Ireland to India, but
never to Normandy as such. Many British and U.K. statutes refer to the
Channel Islands, in turn making plain that they are within "Her
Majesty’s Dominions". But they do not suggest that the sovereign in
relation to these territories is anything other than queen (or king). The
present Queen’s title makes no claim to be Duke of Normandy,
or, indeed, Duke of anywhere [86] . She is "of the
United Kingdom of Great Britain and Northern Ireland
and of her other Realms and Territories, Queen, Defender of the Faith and Head of the Commonwealth" [87] .
The Channel Islands are not within the United Kingdom [88], but they are within Her Majesty’s "other Realms
and Territories" [89], and
of these she claims to be - and is - Queen, not Duke. When a Crown
appointment is made in the Channel Island by Letters Patent, the Queen is described as Queen. Not as Duke of Normandy. In other
commonwealth countries her titles are sometimes varied by local legislation [90] . So for example in Canada she is Queen of Canada and
in New Zealand she is Queen of New Zealand. But there is no Jersey
legislation that I am aware of that makes any similar provision, let alone
any that calls her Duke of Normandy.
Law
So much - so shortly - for the history, and the
royal titles. What of the law? There is some difficulty in talking about
"law" in this area, and particularly in relation to the late
medieval period. This is not private law, like contract or tort law.
It relates to what we would now call "public" law, law relating to
public institutions and authorities. And particularly to international
relations : public international law, in fact. Not a well-established subject in the late medieval period. Moreover, the actual rules
relating to royal succession and titles at this time were simply not settled [91] . But this is a law review, and we must do our best.
First, the Salic Law. This is really like
Sherlock Holmes’ mysterious incident of the dog in the night time. We have
seen how in 1317 the French nobility (after the event) approved the
coronation of Philippe V as King, and for good measure declared that no woman
could hold the throne. And in 1328 this was extended
to a man claiming through a woman. But no one referred to the Salic Law to
justify this view [92] . Indeed, the doctors of the University of Paris in 1317 had used a completely different
reason for preferring Philippe to his niece Jeanne, and that was that he was
one generation less removed from St Louis (Philippe’s great grandfather) [93] . Strange as this view seems
to us today, there were a number of late thirteenth century cases of European
royal succession apparently on this basis. [94]
An alternative view might have been election by the nobility. But elective monarchy had
disappeared from France centuries before [95], and the
notion of legislative power in the barons was no part
of the prevailing culture [96] . So even if this was
what actually happened, it could not be expressed in that way.
It might have been the requirements of the
coronation ceremony. Even if, by this time, the
ceremony no longer made a king, it had far greater significance in
ensuring his recognition than the equivalent English ceremony [97] . It was explicitly religious.
The French King was the "Très Chrétien" [98] . He was anointed and crowned King "of Father, Son & Holy Spirit" [99] . It was said "women ... could not touch sacred
things, which French Kings must" [100] . But although that might explain why a woman could
not be queen, it could not explain why she could not transmit
the right of kingship to her own son. In any event, the earliest that
this view is found in French sources is in 1418-1419, a century after the
events of 1317 and 1328.
A further, misogynistic justification for the
exclusion of women was advanced by the Chevalier of
the Songe du Vergier [101] . Women
are prone to tell lies, and hence cannot give evidence in law. "They are
uncertain, rash, and malicious; in all things they follow the dictates of
their arbitrary desires. They are, especially, weak..
[A] woman is manifestly less fitted to defend their commonwealth
than is a man". [102]
But it was in reality a question of the right man for the job. France needed a strong,
French, King. In the circumstances, Philippe de Valois was the best
candidate [103] . The Salic Law had nothing to do with
it. The essentially practical approach can be illustrated in this way. The
Kingdom of Navarre and the County of Champagne had belonged to Louis X, as
the eldest son of his mother, Joan, Queen of Navarre and Countess of
Champagne in her own right. No one claiming through the Queen of Navarre
could suggest that, as a matter of law (eg the Salic Law) those titles could
not be held by a woman. Yet Louis X’s own five year old daughter, Jeanne, was
in practice passed over in favour of her uncle, Philippe Le Long, King
Philippe V. And after him her other uncle, Charles IV. And on his death, the
nobles could support Philippe De Valois as king: he was after all royal, the
son of Philippe IV Le Bel’s younger brother. But, and importantly, he had no
claim whatever to be King of Navarre and Count of Champagne. These were
titles which descended through Philippe IV Le Bel’s wife. So these titles
were now, somewhat belatedly, recognised in little Jeanne, aged seventeen.
So not only was the Salic Law not expressly
invoked in awarding the French throne to Philippe De Valois; it was expressly
not applied in relation to the Kingdom of Navarre and County of
Champagne. And it does not appear ever to have been invoked in relation to
the title Duke of Normandy. Indeed, as we have seen, Stephen of Blois,
Geoffrey of Anjou and King Henry II all became Duke of Normandy, the first
through his mother Adela, daughter of Henry I; the other two through King
Henry’s other daughter Matilda. Geoffrey claimed as husband, Henry II as son [104] . If the
point mattered, neither Victoria nor Elizabeth II would be disqualified by
sex from holding the title by virtue of the Salic Law.
The invocation of the Salic Law as a reason for
choosing Philippe de Valois came
much later. The earliest reference seems to have been in 1358 [105], without perhaps anyone realising
its importance to France. That importance was only brought out by Jean de
Montreuil [106] about 60 years later, when Henry V was
King of England. And there were other polemics to
similar effect [107] . But the classic work on the
subject was not published until 1464 [108], a century and a half after the events supposed to
be based on it! Nevertheless, the sentiment was long-lived.
The exclusion of women from the throne of France survived into the
Constitution of 3 September 1791 [109], under which
Louis XVI continued as King, the Sénatus-consulte
organique of 1804, making Napoleon the Emperor of the French [110], and even the Sénatus-consulte of 1852, making Napoleon III Emperor [111]
. It also survived into the systems of satellite states, though in Spain it
was expressly abolished (in favour of the daughter of Ferdinand VII, who
succeeded her father as Isabel II in 1833).
The argument based on the Salic law was not
strong, in any event. Shakespeare, basing himself on Archbishop Chichele’s
statement in Holinshed’s Chronicles, gives the Archbishop of
Canterbury in Henry V a powerfully destructive speech: the Salic law
applied to a part of Germany, not France; that part was later conquered by
the French; French Kings have succeeded to the Crown through women; and
lastly the Bible is also invoked, for good measure. [112]
French
Law
Secondly, French law in general. There are a
number of problems for the English lawyer looking at French law from the
medieval to the pre-revolutionary period. First of all there is language. The
older texts are in late medieval Latin or old French. Second, there is a
political and cultural dimension which the modern Englishman finds far more difficult
to approach than (say) the equivalent period in English
legal history (which is hard enough). Third, there is very little academic
material actually available to an English lawyer. French lawyers do not seem
very interested in legal history before the Revolution, and the little there
is cannot easily be accessed in England. Nonetheless, I have tried to make
sense of the few resources I have.
We must begin with the fact that William the
Conqueror and his successors down to John were peers of France, holding the
dukedoms of Normandy and (latterly) of Acquitaine. As the Dukes were Kings
of a powerful neighbouring state, there were obvious tensions in the feudal
relation between them and the Kings of France. As
already described [113], in 1202 John’s refusal to
appear before the nobles of France to answer allegations of breaking his
feudal obligations may have led directly to (i) a declaration by the Court of
France of forfeiture of the title and honours of Duke
of Normandy [114], and (ii) the forced taking (or
retaking) of possession by the French King, by way of execution of the
judgment of the French Court. (In modern times the
very existence of the judgment has been controverted by the British
side [115], but that need not detain us here: this is
the perspective of French law, after all.) But what is clear is that
the judgment - if it existed - was not enforced in relation to the Channel
Islands. It is difficult to know how medieval lawyers would have viewed this
failure. Perhaps they would have seen it as enabling John to continue to be
regarded as de facto Duke of (at least part of) Normandy. Or perhaps
they would have seen it as simply leaving it open to John to establish a new
title, based on war-like occupation and resistance to invasion by the French
but attaching to him as King of England. The latter appears to have
been the preferred view of the judges of the
International Court of Justice in the Minquiers and Ecrehous case in
1953 . [116]
As to mainland Normandy, on the other hand, French lawyers appear to have had no
doubt. The Ancienne Coûtume [117], which De Gruchy said [118] was written probably at the end of the thirteenth
century, but for which he took the text from that of Le Rouillé’s Grand
Coutumier of 1539 [119],
simply said that the King of France now held the lordship and dignity of the
duchy. Whilst not all the great writers on the Coutume de
Normandie express a view,
Bérault [120], Godefroy [121], Routier [122],
Basnage [123],
and Hoüard [124]
all took the view that the Duchy of Normandy belonged to the Crown of France.
The French King indeed granted a Charter to the Normans
in 1315 [125] . But in none of these
sources is there any reference to the Channel Islands.
What is not so clear is whether the French
lawyers took the view that their King was the Duke, or whether there
was no longer a Duke, and Normandy was held directly by the King. Bérault
expressly referred to John as "le dernier des
Ducs de Normandie" [126] . As already stated
[127], there were rare examples
of subsequent French Kings granting the title of Duke of Normandy to their
own sons. This supports the latter view. (In addition,
it would be consistent with the English law relating to merger of titles in
the Crown. [128] )
The complicating factor is the abolition of the
French monarchy. As is well known, this did not
happen as a single event, but as a series of events, lasting from the
Revolution to the end of the Franco-Prussian War [129]
. The original despotic monarchy was replaced in 1791 by a constitutional
one, which was then in the following year abolished. The First Republic was
succeeded in 1804 by the Empire, and then (in 1815) by the restoration of the
Monarchy. But that lasted only until 1848, and the institution of the Second
Republic. In 1852, the Second Empire replaced that,
to be itself replaced by the Third Republic in 1871. The
constitutional documents governing these changes [130]
do not (perhaps unsurprisingly) deal with questions of titles and honours.
And I have been unable to locate any discussion of the possible transmission
of any residual rights of the King (whether as King or Duke) through to some
officer or institution (e.g. the President) of the Republic.
But three practical points can be made. First,
the pretender to the French throne, the Count of Paris, does not claim to be
Duke of Normandy. Indeed, his ancestors have claimed (and held) a wide
variety of titles, including Duke of Chartres, Duke of Orleans, and Duke of
Guise, but never of Normandy. And his eldest son bears the title Count of
Chambord. Second, the French Republic asserted its claim to the
Minquiers and the Ecrehous before the International Court of Justice as
successor to the French monarchy, based on the forfeiture of King John’s
title. That of course would not demonstrate a particular person as
holding (in whatever representative or official capacity) the rights due
anciently to the Duke of Normandy.
The third point may do so. Until 1993, the Principality of Andorra was governed by a medieval system
which involved the sharing of the role of head of state by two co-princes [131] . A thirteenth century quarrel over sovereignty was
settled in 1278 by awarding it to the Counts of Foix and the Bishops of Urgel
jointly. The title of Count of Foix was united with that of the King
of Navarre in 1479, and in 1589 Henry, King of Navarre, became King Henry IV
of France. So, from 1589 on, the King of France was a co-prince of Andorra.
At the Revolution relations between France and
Andorra were suspended, and only resumed under the Empire in 1806 [132] . The French co-prince thereafter was the French
Head of State. So it remained, even under the Third, Fourth and Fifth
Republics, that the President was the co-prince, as successor to the medieval
seigneurial rights of the Counts of Foix. In the absence of other authority,
this may prove an appropriate parallel for modern French law to follow, if
called upon to do so. Channel Islanders who have hitherto toasted "the
Duke of Normandy" may not find the logic very appealing, but, if it is
right that the title Duke of Normandy - or the rights
attaching to it - survives, then French law, at least, might well
treat as the person entitled to exercise those rights the President of the
French Republic. Of course, in reality there is no practical possibility of
the French president seeking to do so in relation to the Channel Islands.
But in relation to mainland Normandy the argument has both practical and
juristic merit.
English
Law
Let us now briefly consider English law. The status
of the Channel Islands is hardly in doubt. When Philippe Auguste retook
possession of continental Normandy in 1204, King John retained
the Channel Islands. As the International Court of Justice held in 1953, in
the Minquiers and Ecrehous case [133], he did
not do so as the vassal of the King of France. His right as Duke of Normandy
lapsed, and a separate title grew up by force of occupation, which attached
to him as King of England. This was confirmed by Bretigny (and
Calais) in 1360. In addition, we have seen [134] that the use of the title Duke of Normandy by
English monarchs after 1259 was sporadic and for some temporary purpose
during battle campaigns. And it ceased entirely after 1420. Yet the English
Kings continued to hold the Channel Islands. It must have been as King of
England. There is no suggestion of any grant after 1204 by anyone of any
other title relating to the Channel Islands. In the plea De Quo Warranto
of 1309, for example, the King’s justices in Eyre asked the commonalty of
Jersey what law they used and by what law they claimed to be governed, and
other related questions. The questions and answers recorded refer to the
current lord as "the Lord the King", never as the "Duke".
Indeed, the only reference to the Duke at all is in the
answer given by "Willelmus des Mareys" [dumaresq?] [135], which includes the following words (in
translation):
"He says that it is manifest that all the
Islanders are of one and the same tongue, and at the time which the Duchy
of Normandy had a Duke, the Islands were of that Duke, and as often as
the Islanders make a perquisition of the Court of the
Lord the King, it is always written at their suggestion according to the law
and custom of the Islands ..." [136]
(emphasis supplied).
On the other hand, a further plea De Quo
Warranto, of 1331, recites petitions from the commonalty of the Islands
to the King, including these words (in translation):
"Whereas the Islands are
anciently parcel of the Duchy of Normandy and in such manner hold of our
Lord the King as of the Duke ..." [137]
This is ambiguous. It may well mean that they
hold of the King as they used to hold of his ancestor, the Duke. On the other
hand, it might be taken to suggest that the King was regarded in the
Islands as the Duke. But that is as far as it goes. There is no
suggestion that the King endorsed this approach, even if that is what was
meant. The King’s style and titles in the plea make no reference to Normandy.
Coke, in his Institutes, said that
"the possessions of [the Channel Islands]
being Parcel of the duchy of Normandy, are a good
seisin for the King of England for the whole duchy." [138]
But as we have seen [139],
this did not mean that the King was other that a
King. Instead, Coke used this statement to justify the use of the
"customes of Normandy" there.
Hale, writing in the seventeenth century, held
that King had given up the title of Duke of Normandy [140], the Islands were "annexed to the Crown of
England", and "infra dominium regni sui
Angliae" [141], though
"not Parcel of the Realm of England" [142] .
Blackstone [143] in the eighteenth century took a similar view, as have modern writers [144] . None
of them suggested that the King was also the Duke. In the nineteenth and
twentieth centuries English case law has confirmed that Jersey and Guernsey,
whilst part of the domains of the Crown, and though in a popular sense part of the United Kingdom [145],
are not legally within the United Kingdom [146] . One modern judicial dictum additionally says that
they are "part of the domains of Her Majesty as Duke of Normandy" [147] . But this
is a lone voice, and it seems that no argument was addressed on whether the
Queen really was the Duke. Indeed, it was irrelevant to the decision
in the matter, which concerned the construction of the phrase "beyond
the seas" in English rules of court. Lastly, wherever English statutes [148] refer to the
Channel Islands (which is not often) or to the Royal Style and Titles [149], there is no mention of the
Duke of Normandy. Any references are to the King (or Queen) of the United
Kingdom. No UK statute changing the succession to the English or British
throne, whether in 1689, 1702 or 1936, has ever referred to or dealt with the
title Duke of Normandy. This strongly suggests that the title had gone.
(Alternatively, it would permit an argument that the current holder of the
title was not the Queen, but the Stuart pretender to the British throne, the
Prince of Bavaria!)
The conclusion, so far as English law
is concerned, must be that British monarchs are not Dukes of Normandy, even
in respect of the Channel Islands. But even if they could otherwise be, under
English law, Dukes of Normandy, there is a further difficulty in the way. As
a matter of English peerage law, it seems that when a
peer becomes King, the peerage is merged into the higher
title, and disappears [150] . Thus, for example, when
King Edward VIII abdicated in 1936, and the Duke of York succeeded him as
King George VI, the title of Duke of York ceased to exist, and could only be
revived or recreated by a new grant, such as occurred in 1986.
This can be seen also in relation to the Duchy
of Lancaster. John of Gaunt was Edward III’s fourth son, created Duke of
Lancaster in 1362. His son Henry Bolingbroke succeeded him in that title on
his death in February 1399. His cousin King Richard II abdicated in Henry’s
favour in September 1399, and Henry was crowned King Henry IV in October
1399. But, although the new King ceased as a matter of law to be the Duke of Lancaster, he was mindful of the turbulent
times in which he lived, and of how he had deposed the previous king [151] . So he went to some trouble
to have the lands and revenues of the Duchy of Lancaster administered
separately from those of the Crown [152], and to
obtain Parliamentary approval for this [153] . In that way he would always have something to
fall back on if he ceased to be king. This separation has
been maintained ever since [154] .
It is true that there
exist documents referring to the King as Duke of Lancaster. These include
instruments under the seal of the Duchy of Lancaster [155],
and letters patent under the great seal. In addition Acts of Parliament
dealing with Duchy affairs sometimes did so too. One [156]
in Victorian times referred to Queen Victoria as Duchess
of Lancaster. Closer still to the title of this essay is the time-honoured
form of the loyal toast in Lancashire: "The King, Duke of
Lancaster", or, in the reign of Queen Victoria and of the present Queen,
"The Queen, Duke of Lancaster". But our concern here is with what
the law is, not with what laymen think it is. And the fact is
that the Royal style does not include any claim to be Duke of Lancaster. Nor
could it, short of Parliamentary sanction. As Lord Cairns said, in a peerage
case in 1876,
"The Duchy of Cornwall is held by the
Prince of Wales for the time being - the Prince of Wales becomes the
sovereign of the country - becoming the sovereign of the country, it is
impossible that he can hold any other dignity. The fountain and source of all
dignities cannot hold a dignity himself. The dignity, therefore, as a dignity
to be held by the sovereign terminates, not by virtue of any provision in its
creation but from the absolute incapacity of the sovereign
to hold a dignity." [157]
Of course, this does not apply to foreign
dignities. Norman and early Plantagenet kings could claim to be King of
England (by conquest) and Duke of Normandy or of Acquitaine (as vassals of
the King of France). But we have already dealt with the title Duke of
Normandy as a French title, under French law [158]
. Here we are considering it as an English title.
It may be said that there is a third
possibility, that English law might recognise the subsistence of the
French title "Duke of Normandy" in someone, though French
law would not (or might not) so recognise it. There is not much learning on
the conflict of laws as applied to dignities and titles
of honour. The general rule appears to be that English law does not
recognise foreign dignities and titles [159] . Whether
the Sovereign is exempt from that rule is unclear,
but there are examples of licences being granted by the Sovereign to accept
and enjoy such dignities [160] . At the end of the
day, as a practical matter, either the legal system giving rise to the title
recognises it or it does not. If it does not, then - whatever English law
might think - for all practical purposes it does not exist. Although France
is a republic, titles - even those dating back to
medieval times - are officially recognised [161] . At
best it would seem that the pretender to the title would have to apply to the
appropriate authority or tribunal in France to adjudicate on the question
whether, under French law, the title can still be said to subsist
today. There is no prospect of that happening in this case.
Jersey
Law
I turn finally to Jersey law. The status of Jersey as a dependency of the British (via the English)
Crown has already been dealt with [162] . I have also
mentioned the Royal Charters, with their almost complete lack of reference to Dukes of Normandy [163],
and the local court documents, with their occasional reference to them [164] . Of the
Jersey legal writers, I have found nothing in Le Geyt relevant to the
argument. Poingdestre wrote a section of his "Les Lois et Coutumes de L’Ile de Jersey" [165] called "Des Droicts de la Couronne
d’Angleterre en Jersey". In that section he calls the islands
"le plus ancient Patrimoine & le plus indubitable des Roys d’Angleterre ..." [166]
And the islanders
"les plus ancients Subjects desdits roys d’Angleterre ..." [167]
The only Duke he refers to is the first one, Rou
(or Rollo). King John is referred to as le Roy
Jean [168], and the King at the time he was
writing as "Sa Majesté" [169] . There is no support here for the view that Kings
of England after 1259 were also Dukes of Normandy.
Le Gros in his Droit Coutumier
[170] has a section entitled "De
l’organisation judiciaire à l’époque du Vieux Coutumier et des Droits du Duc" [171], but this
does not appear to be suggesting that English monarchs after 1259 are Dukes
of Normandy. De Gruchy’s work on Medieval Land Tenures in Jersey [172]contains
a number of references to the Kings of England, but only one to the "King-Duke" [173] .
Lemasurier’s book Le Droit de l’Ile de Jersey
[174] contains little bearing on the point, though it
refers constantly to the King of England rather than to the Duke of Normandy
as sovereign. For example, he says that, after 1204,
"Les insulaires ne rendaient
plus hommage à un roi qui était Duc de Normandie, mais au seul roi
d’Angleterre". [175]
As for legislation, there is no Royal Titles
legislation that I have found. Nor have I found any independent legislation
there dealing with changes to the order of succession, eg after the
deposition of James II, or on the accession of George I, or at the abdication
of Edward VIII. The Code of 1771 contains, in the Oaths to be taken by
various officials, references to "notre Souvrerain... par la Grace
de Dieu, Roi de la Grande Bretagne, France et Irlande, et les Dominions qui
en dépendent..." In particular, the oath for advocates refers to "cette
son Isle de Jersey". The inference is obvious. This is the King’s
island, the King’s Court, and so on. Not the Duke’s. A règlement
of 1937, concerning the variation of permitted hours for the sale of alcohol
at the time of the coronation refers to "la célébration du
Couronnement de Leurs Majestés le Roi George V et la Reine Elizabeth."
No mention of the Duke (or Duchess). A rare Jersey law that refers to the feudal
rights of the Crown is the Seigneurial Rights (Abolition) (Jersey) Law 1966.
This makes a number of references to "Her Majesty" and "Her
Majesty in Council". There is no reference to the Duchy or the Duke of
Normandy. Lastly, letters patent appointing Crown Officers in Jersey, up to
and including the office of Bailiff, refer to the British monarch in the
style and titles already discussed. Normandy is nowhere mentioned.
Accordingly I conclude that there is no basis in Jersey law, as
distinct from English law, for treating the Queen as Duke of Normandy. She is
the Queen, and that is that.
Conclusion
Let us summarise the position. Kings of England
were Dukes of Normandy, in a real and meaningful sense, up to 1204. They claimed
to be so until 1259, when they gave up the title by international treaty. For
the next 160 years there were very rare - and short lived - attempts to call
themselves Dukes of Normandy, but none after 1420. French law would probably
judge the English Kings to have forfeited the title in 1202, and, although it
appears to have been granted or used a few times thereafter by French Kings,
for most of the following centuries there was, according to French law, no
Duke. If there are residual feudal or seigneurial rights relating to the
Dukedom in continental Normandy, they have probably passed to the French President.
But, in relation to the Channel Islands, the English Kings established a new
and original title, effectively by force. English law, however, does not
recognise the creation of any separate Dukedom - or other title - in relation
to the Islands, and holds that the British monarch is their sovereign, in the
capacity of King or Queen. In any event, the King or Queen could not also be
Duke under English peerage law. Jersey law accepts - indeed asserts - the
status of Crown dependency accorded under English law, but does not provide
for, or recognise, any separate title for the British sovereign in Jersey.
This is as it should be. In modern times it
would plainly be offensive to a friendly neighbour state (France) for the
British Crown to assert a right to the title of Duke of a large part of that
state. It would also be misleading, as it would suggest a connection - even a
power - which no longer exists. Of course Jersey law could provide
expressly for the sovereign to be known and referred to there as (say) the
Duke of the Channel Islands, or something of the sort. A kind of titular UDI.
But that would involve the loss of the immediate and obvious (not to say
popular) connection with Britain. In addition, there would be a need for
separate legislation whenever the succession was altered, and also for
co-ordination with Guernsey.
The wisest course is to leave things as they
are. The Queen in Jersey is, legally speaking, the Queen. The vestiges of
history relating to Ducal titles that remind Jersey of its Norman past are,
unlike some other areas of customary Norman law, of no practical importance today. They are best left, as they are, to a piece of harmless after-dinner whimsy: "To the
Queen, our Duke" [176] .
Paul Matthews is a solicitor of the Supreme
Court of England and Wales and a consultant with the firm of Withers, 12,
Gough Square, London EC4A 3DE.