A New Theory of Rights Through the Lens of the History of the Common Law

A New Theory of Rights Through the Lens of the History of the Common Law Daniel J. Herron1 Debra Burke2 What is the Common Law? The common law is a body of general rules, enforced and applied by the courts, deriving its principles from the ground of decisions in actual legal controversies; it is marked by its extensive use of the jury with the court applying the proper rules to the facts as the jury had determined them. This entire process of the common law is bound by the supremacy of the law, that it the rule of law as administered through due process.3 This paper proposes a different lens in which to consider the origin of the common law. The evolution of rights and the intertwining of rights evolution with the chronology and history of English law seem to point to a symbiotic relationship. Though likely not cognizant to the medieval mind, this symbiotic relationship is nonetheless a lens that gives us better clarity in understanding the evolutionary arcs of both the common law per se and the underlying rights supporting the foundations of the evolving causes of action. The Historical Perspective: the “Anarchy” A convenient point to start this historical inquiry is with Magna Carta from 1215 and reissued by Henry III in 1225.4 However, the codification of Magna Carta reflects legal developments from the previous sixty years, specifically, the legal reforms and innovations 1 Professor Emeritus of Legal Studies, Miami University, Oxford OH; Visiting Professor of Legal Studies, Western Carolina University, Cullowhee NC 2 Professor of Business Law; Former Acting Dean-College of Business, Western Carolina University, Cullowhee NC 3 ARTHUR HOGUE THE ORIGINS OF THE COMMON LAW (1966), pages 188-190 4 Id. p. 54 1 implemented by Henry II, great grandson of William the Conqueror. William the Conqueror was succeeded thirteen years after his death by his youngest son Henry, dubbed Henry I, the “Lion of Justice.”5 His thirty five year reign was marked with relative peace and prosperity. However, William Adelin, his only legitimate son and heir apparent, drowned in the sinking of the “white ship” in 1120.6 Henry’s only remaining heir was his daughter Matilda, dowager empress of the Holy Roman Empire. With her aged husband’s death, the comparatively young Matilda returned from the Imperial Court and married a minor count, Geoffrey of Anjou. She bore him a son, named after her father, in 1133. When Henry I died in 1135, Matilda claims the throne as direct heir. However, the electors for the English throne narrowly choose Matilda’s first cousin, Stephen, son of Henry I’s sister Adela. Matilda refused to recognize this election and, marshalling supporters, troops, and resources, plunged the country into a bloody and protracted civil war with Stephen. As the “anarchy” progressed from the late 1130’s, into the 1140’s, and into the 1150’s with lands changing control from Matilda to Stephen to Matilda to Stephen, confusion was rampant with the landed nobility changing allegiances as the need arose. Stephen managed to get himself crowned but Matilda never held London long enough in this conflict to duplicate the act. By the late 1140’s, Stephen and Matilda were well into middle age and growing weary. Their respective sons, Eustace and Henry, essentially took charge of the hostilities. Young Henry invaded England from his Normandy stronghold in the summer of 1153 and prevailed in the battle of Wallingford. Subsequently losing both Oxford and Stamford in the fall of 1153, Stephen was forced to accept the reality that young Henry would become Stephen’s heir, displacing Eustace. 5 Morgan Bingham, Henry I, “Lion of Justice”: A Norman Approach to English Law ALETHEIA : THE ALPHA CHI JOURNAL OF UNDERGRADUATE SCHOLARSHIP, Volume1 #2 pp. 2-12 (2016) 6 Id. p. 4 fn. 14 2 Eustace having previously left court humiliated and furious vowing to continue to struggle after the defeat at Wallingford, died, though, on August 17, 1153 due to food poisoning or the “wrath of God,” according to many historians.7 Stephen, ill and heartbroken over his son’s death, agreed to the peace agreement. On November 6, 1153, Stephen recognized Henry as his heir and agreed to the Treaty of Winchester, formally setting the terms of royal succession.8 Stephen would last only another year, dying on October 25, 1154.9 Twenty-one year old Henry and his thirty-three year old wife, Eleanor, Duchess of the wealthy province of the Aquitaine and annulled wife of King Louis VII of France, were crowned King and Queen of England. Henry II, First Plantagenet King Experts on medieval history in England tend to have a difficult time with characterizing Henry II10 as a man. It is possible to paint him as a justice-giver who was full of ambition, one who passionately sought after the implementation of legal reforms which could protect the rights of all the people in his kingdom. On the other end, it is possible to see him as a self-centered man that only desired to expand his own royal control over England. According to the historian, Gerald of Wales, a man that knew Henry personally: “he was chief among the eloquent, and – a thing which is most conspicuous in these times – he was most skilled in letters; a man easy to approach, tractable, and courteous; in politeness second to none. A leader so strong in sense of duty that, as often as he conquered in arms, he himself was more often conquered by his sense of justice…In all his actions he was prudent and moderate; and on account of this, 7 JOHN T. APPLEBY HENRY II THE VANQUISHED KING (1962) p. 34 8 Id. p. 35 9 Id. p. 36 10 1133-1189 C.E. 3 the remedy going somewhat too far, he was dilatory in doing right and justice, and, to the great harm of his people, he was slow to respond in such matters”.11 It is necessary to approach the topic of Henry’s personality with a fair amount of moderation so as to focus on historical accuracy rather than to speculate about politics and personal ambitions among men who lived in the 12th century. Nonetheless, it was political turmoil that largely defined the first decade of the reign of King Henry II. A state of perpetual conflict throughout the reign of King Stephen from 1135-1153 had left England fragmented amongst various powerful earls/lords, resulting in widespread alienation of royal demesne. The long- running regnal succession dispute with Henry’s mother Matilda did not permit a peaceful transition when Henry I, Matilda’s father and Stephen’s uncle died in 1135. Only when Stephen’s heir Eustace died unexpectantly were Matilda and Stephen able to effectuate and finalize a truce with Stephen recognizing Matilda’s son, Henry, as heir. Inheriting a dysfunctional kingdom in England, Henry was forced to devise a way in order to consolidate his power there, while also answering for the security of his holdings on the continent. As a result, “Henry’s political problems, the defense of Normandy, the restoration of order in Anjou, the expeditions to Brittany, Wales, and Toulouse, all demanded money at a time when the royal revenues, disordered by civil war, were still encumbered by debts contracted by Henry on his way to the throne”.12 Thus, Henry’s earliest reforms were aimed at standardizing procedures around the collection of royal revenue. It was this basic policy objective, coupled with the continual absence of the king, that led to Henry developing more significant administrative institutions that could centralize power under royal authority. 11 E.P. CHEYNEY, READINGS IN ENGLISH HISTORY DRAWN FROM THE ORIGINAL SOURCES Boston: Ginn and Company, 1922, pp. 137-139. 12 Warren, W.L. Henry II. Eyre Methuen, 1973, p. 263. 4 However shortsighted his administrative actions might have been from around 1154-1166, they nonetheless ended up establishing a structure of government that could facilitate his later reforms. The context for which Henry II found his ascension to the English throne was one where the institution of the kingship had been gravely undermined by his predecessor, and this was a major source of political strife. A lot can be said about the reign of King Stephen, not much of it being positive, but the foregone conclusion is that he was not well-respected as king. During his reign, royal control throughout England had withered away to the point that Henry ended up acquiring a kingdom where, “royal government had effectively been confined to parts of Eastern England, the south-east and south Midlands, and even here there had been challenges to the king’s control”13. Stephen’s inability to assert royal dominance was evident from his frequent concessions to baronial rule and also from accounts of his weak-minded mannerisms where he, “‘commonly forgot a king’s exalted rank’ and ‘saw himself not superior to his men, but in every way their equal, sometimes actually their inferior’”.14 In order that it be possible for Henry to effectively implement his policies across the kingdom, it was necessary for him to first re-establish royal authority. This required him to restructure the delegation of authority so that administrative power was predominantly wielded by a centralized, royal bureaucracy; while also allowing for effective institutions and procedures to take place in local jurisdictions. He accomplished this by first repurposing baronial power where: “the king’s policy seems to have been to give his ablest earls important alternative tasks: the appointments of the earl of Leicester as chief justiciar, the earl of Arundel repeatedly as an ambassador, the earl of Wiltshire as military commander in Poitou, 13 WHITE, GRAEME J.

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