LUCAS MOCTEZUMA
LLB V
Royal Commissions have a lengthy history spanning almost a millennium, originating with the “Domesday Book” compiled in 1086 England. The first Royal Commission, the Domesday Inquiry, was largely about projecting power over a disheartened English population through the control of information and the dispossession of the English people. Witnesses testified before juries with the shire courts becoming battlegrounds for competing property claims. In Australia’s modern democratic society, Commissions are not expressly about projecting executive power but are vehicles to establishing wrong-doing and malpractice.
The Royal Commissions of today are therefore vastly different from the original eleventh century inquiry; however there are also some fundamental similarities. This article will explore the history, purpose and procedure of compiling the Domesday Book, and identify the similarities between the Domesday Book and contemporary Australian Royal Commissions, being the nature of open proceedings, evidentiary liberties and the sweeping powers of Commissioners.
Historical background
The Battle of Hastings in 1066 ended with King William I as the first Norman King of England. Edward the Confessor, one of the last Anglo-Saxon Kings, had ruled England since 1042 and named William, Duke of Normandy, as his successor. When Edward died in 1066 he was succeeded by Harold II, Edward’s brother-in-law. William was enraged and assembled an army, defeating King Harold II’s weary troops at Hastings.
This victory led to William marching his army across the country over the next few years, suppressing Saxon rebellions and fighting off Welsh, Scandinavian and Scottish attacks. William built castles and installed Norman barons to take control of the territory.
After his military campaigns, William developed an innovative approach to solidifying his power in the territory and ensure the longevity of Norman rule. The new ruler gathered a large war council and decided to engage in a colossal bureaucratic, fact-finding mission. He would start the first ever Royal Commission, hiring “Commissioners” to venture out across his new kingdom. The inquiry would become known as the ‘descriptio’ of England. The final publication (which comprised of three books in total) became known as the King’s Book, the Book of Exchequer or the Book of Winchester. To the native Englishmen, it simply became known as the “Domesday Book”, named after the Day of Judgment.
A Royal Commission into Power: the purpose of the Domesday inquiry
There was significant tension within the Kingdom after the Norman Conquest. Much of the population had strong loyal ties to King Edward and King Harold II. William therefore did not set out to develop a census or investigate any social issues that formulated the basis of modern Australian Royal Commissions; he wanted to plant the seeds of Norman power.
Rather than just suppressing the population with military force, William implemented bureaucratic measures and controlled the flow of information. While historians do not agree on all the reasons William decided to commission the Domesday book, a recent biography suggests William’s purpose was “multi-functional”. [1] One likely reason was to create a sacred document providing ‘irrefutable’ proof of English property rights to establish himself as the true King of England. As Sally Harvey explains, the Book became “a minutely ordered bureaucratic enterprise designed to give an authoritative legal framework and some permanence to the subjugation of a peace-hungry and productive society.” [2]
Like the Royal Commissions we know today, the Domesday Inquiry gathered information in accordance with “terms of reference” (which today are approved by the Governor-General).[3] The Domesday terms consisted of specific questions asked of the people of the Kingdom, inquiring into who owned which particular piece of property in the time of King Edward, ranging from wood, meadow, pastures and livestock, and who held it presently at the time of King William. The questions also asked how many tenants resided on the property, and how much the property was worth before and during William’s time.
“...the book was like the ultimate title deed.”
The answers to these questions created a legal document that became unquestionable proof of ownership. Any property dispute between would-be landholders would be solved by looking at the Domesday Book. In this regard, the book was like the ultimate title deed.
The text of the Book therefore reveals a sad story of dispossession and explains why King William needed to create a bureaucratic symbol of power. In the town of Bourne, for instance, the text reveals the story of an Englishman named Almauer whose land was stolen from him by a Norman-appointed sheriff, who then testified at the Domesday inquiry that it was his land. Almauer was thus transformed into a tenant on his own land, and he would never again be the owner. Similarly, Aelfwine, who owned seven manors prior to the Norman conquest, appeared to have lost five manors from the time of the conquest to the recording of the Domesday Book. As Cynthia Puryear states, "most of the remaining Anglo-Saxon aristocrats became tenants of Norman lords, often on land they had previously controlled themselves".[4] Indeed, in the Domesday Book, it's rare to find an English landowner. By 1086, only about eight per cent of English land remained in Anglo-Saxon possession.[5]
Norman sheriffs played a critical role in the inquiries and were often tasked with the responsibility of summoning witnesses. However, this power bred corruption. A notorious Norman sheriff by the name of “Picot” terrorised witnesses and coerced them to lie that land was his. One particular jury was later found guilty of perjury and fined, and Picot continued to have his claims challenged. The Domesday Book reveals that seventeen Norman sheriffs held lands worth at least £100 yearly. Five Sheriffs held lands worth between £450 and £650. Another held lands worth almost £800.[6] These statistics, recorded throughout the pages of the Domesday Book, demonstrate just how successful the King’s spread of power was, as Normans became wealthier and wealthier at the expense of their conquered subjects.
Another possible reason for commissioning the Domesday Book was to create a comprehensive list of landowners so that the King knew how much tax he could raise. King William needed finance to levy his military in case of invasion. David Roberts QC writes that William needed money from taxes to maintain his army, and the Domesday Survey “compiled an inventory of all the assets of the citizenry so as to provide a reliable basis for assessment”.[7] While this is likely so, taxation must be seen as just one part of William’s larger project that was ‘kingdom-making’.
That the Domesday Book was part of a larger project of kingdom-making is reflected by another key component of Domesday - it wiped from history the presence of King Harold II. The questions asked to the people of England focused on property ownership at the time of “King” Edward the Confessor, and at the time of King William’s reign. But not a trace of King Harold II’s time was recorded in the Book. As Professor Stephen Baxter explained in the BBC documentary Domesday, Harold II - who King William defeated at the Battle of Hastings – was “airbrushed from history”. Effectively, Domesday created the ‘new’ England, an England of Norman rule.
“Shire Courts” and Royal Commission procedure
The colossal bureaucratic exercise of the Domesday Book was undertaken through public hearings at “shire courts”, originally a Saxon administration process. William took full advantage of the courts, dividing the country into seven circuits and appointing four "Commissioners", also called “King’s Judiciaries”, who would hold special sessions at these courts for the Inquiry.[8] These Commissioners were usually Norman sheriffs, but there were also Earls and sometimes bishops (called “Christ’s Sheriffs”).
Shire courts were run during the Domesday Survey largely as they had been run under Saxon rule. There were generally no lawyers or professional judges, and the courts acted more like arbitrative tribunals as we know them today. The courts, or moots as they were also called, passed laws (doms) which were the modern equivalent of decrees, judgments and statutes, however there were no daily court sittings, and shiremoots only met twice a year.
Shire courts during the Domesday Inquiry became warzones between people who staked claim over property. Witnesses, including landholders, were called to give evidence before Commissioners and a panel of local jurors. Commissioners had sweeping powers to the extent that they could summon any member of a community (even entire villages) and force them to testify. Thousands of claims were challenged, including claims made by Sheriff Picot as mentioned earlier. It was a tense environment as people who laid claim to property would wait anxiously in the public forum to see if anybody challenged their claim.
Witness testimonies about property ownership was the primary evidentiary base for claims in the courts. Around 60,000 people were called to give testimony. Dr James Kane of the University of Sydney notes that the majority of the evidence presented at shire courts was oral testimony. It was mostly wealthier landholders that could present written documentation (if that documentation existed at all). Many laws and property claims had been handed down orally, as eleventh century England was just beginning to transition into written forms of record-keeping.[9] The Domesday Book reveals, for example, the names of a range of jurors from Cambridgeshire who made particular verdicts based on witness testimony as to details of people’s livestock including ownership of cows, sheep, and pigs. Many witnesses, however, were forced to testify. David Roberts QC writes that jurors were “empaneled to hear testimony under oath from local notables, whether they wanted to testify or not”.[10]
“The combination of shire courts requiring documented proof of ownership in the case of a dispute and the lack of documented property ownership under the previous ruler made it easier for William’s Commissioners to confiscate the land for the King.”
Every landholder was required to submit evidence on oath before a panel of jurors. These jurors were drawn from the towns, villages and administrative units and were faced with the mammoth task of affirming who held land in King Edward’s time. In other words, the jurorshad to decide whether their neighbours were being truthful as to their claim. If a dispute arose about the present owner, the jurors were asked whether they saw a writ or any messengers evidencing ownership.[11] This was a particularly difficult affair given the absence of written documentation in most cases. It had previously been common for the ruler to orally grant a person land in return for military service. The combination of shire courts requiring documented proof of ownership in the case of a dispute and the lack of documented property ownership under the previous ruler made it easier for William’s Commissioners to confiscate the land for the King.
After the hearings, the Commissioners and the scribe drafted the results. It is very likely that they drafted them based on jottings produced by the clerks of the Domesday Commissioners, who recorded the details of oral evidence.[12] These commissioners were mainly a French-speaking Norman elite and wrote in Latin. The full Domesday Book was likely then written by one single scribe, which was later presented to the King.
The legacy of the Domesday Book in Australia
One important element of the Domesday Inquiry that has not changed today is the one-off, fixed-term nature of Royal Commissions. Royal Commissions are established for a specific purpose with a narrow set of terms of reference. The power to establish a commission is found in the Crown’s right to appoint officials to perform temporary administrative duties.
Just like how the first Royal Commission was circumscribed to establishing property ownership, Australia has had royal commissions into very specific affairs. For example, Australia has had Royal Commissions into arrangements made for transporting troops home from the Boer War (1902), the tobacco monopoly (1905-1914), industrial troubles on Melbourne wharfs (1919-1920), the moving picture industry (1927-1928), the contract for the erection of additions to the General Post Office in Sydney (1939) all the way up to current Royal Commission into violence, abuse, neglect and exploitation of people with a disability (2019-2022). This fixed-term purpose-driven structure is a defining character of all Royal Commissions.
Nevertheless, as the nature of government has changed, so has the limitations on the executive when exercising administrative powers. We do not think (generally) of Royal Commissions as the executive government projecting its own power or increasingly the longevity of its own term in office. Present Commissioners who engage in fact-finding exercises, such as over the banking industry, aged care facilities or child detention facilities, present recommendations of legislative change to the relevant Minister. They do not formulate documents of legal force, like the Domesday Book did.
That is not to say, however, that Royal Commissions don’t have an inherent political purpose. We need look no further than the Royal Commission into Trade Unions established by the Abbott Government, which some commentators have seen as an attack on the Liberal Party’s political rivals. The Liberal political affiliations of the appointed Commissioner, Dyson Heydon, did no favours to the integrity of the Commission. According to one commentator, Heydon’s political connections only emphasised that the Commission was a “dangerous abuse of executive power”.[13]
The legacy of the Domesday Book in Australia - procedure
The modern Royal Commission resembles the tribunal-like procedure of the Saxon shire courts. The hearings are still held in a public forum, to the extent that they are now being filmed and made available live on the internet. Royal Commissions are also still expressly non-judicial and act as an arm of the executive, with Commission members appointed by the government of the day. Section 2 of the Royal Commissions Act 1902 (Cth) (the Act) also gives the Commission a broad power to summon people to give evidence and produce documents, reminiscent of the powers of shire court Commissioners in the eleventh century. Unlike in present judicial proceedings, witnesses can be required to answer questions that incriminate them as contained in section 6A of the Act.
Evidence adduced in a Royal Commission can, like the Domesday book, also be used as evidence in subsequent legal proceedings. Sir William Holdsworth writes that "to ascertain whether or not a given piece of land was ancient demesne, Domesday Book was the only evidence admitted; and its evidence was conclusive”. [14] However, the Act has now made substantial qualifications to this rule. In particular, section 6DD enshrines that a "statement or disclosure" made by a witness giving evidence in a Royal Commission is "not admissible in evidence against a natural person in any civil or criminal proceedings" (unless, of course, the proceedings are under the Act itself).[15] Such evidence is, however, admissible in proceedings against a corporation.
The most apparent difference between present Royal Commissions and their Domesday ancestor is that the Domesday Inquiry generally did not feature the presence of lawyers. Dr Kane notes that whilst lawyers may have been involved in medieval shire courts, evidence-collection at the Domesday inquiries was different to ordinary court procedure of the time.[16] Today, Royal Commissions are largely driven by professional barristers representing both the Commission and parties under examination. Section 6FA of the Act allows “any legal practitioner” appointed by the Attorney-General, or authorised by the Commission, to appear before the Commission to “examine or cross-examine any witness on any matter which the Commission deems relevant to the inquiry”.
The greater presence of lawyers may simply be put down to the prevalence of law, order, and legal practitioners in our modern society as opposed to at the time of the Domesday Inquiry. However, the practical implication of a legal culture on Royal Commissions is clear. One can easily imagine the difference between the clear, organised and measured questioning of Rowena Orr QC and Michael Hodge QC overseen by Kenneth Hayne AC QC during the Banking Royal Commission juxtaposed to the more chaotic shire courts where ‘cross-examination’ was done on the floor by desperate property claimants who believed property was rightfully theirs.
Another difference is that modern Royal Commissions do not rely on panels or juries like the Domesday Inquiry did. The nature and order of the hearings are determined by the Commissioner, with the role of figures like ‘sheriffs’ and ‘bishops’ replaced by lawyers and officials. The fact-finder role is wholly within the jurisdiction of the Commissioner. Such a reliance on one Commissioner may reflect the criticism of juries for a perceived failure to reach proper outcomes. As Justice Peter McClellan cynically said, "Royal Commissions seek the truth – a jury trial provides a community decision".[17]
“The need for such a statute to prevent unlawful acts of the executive was a pressing one.”
The Domesday Inquiry – as with many Royal Commissions in the UK – was appointed through royal prerogative. Today in Australia, legislation such as the Royal Commission Act has been passed to modify that prerogative. The need for such a statute to prevent unlawful acts of the executive was a pressing one. In the famous case of Clough v Leahy, Griffith CJ said that “the Executive Government cannot by its Commission make lawful the doing of an unlawful act. If an act is unlawful – forbidden by law – a person who does it can claim no protection by saying that he acted under the authority of the Crown”.[18] Of course, in 1080 England, King William was unrestrained in his methods of conducting the Domesday Inquiry and he took full advantage.
Royal Commissions have their foundation in the old English document we know as the Domesday Book. Although the nature of such inquiries has vastly changed, the Book’s legacy can be seen nearly a thousand years later when looking at Commission purpose and procedure. It is a fascinating history and it should be kept in mind when observing how Royal Commissions operate in the present day.
[1] David Bates, William the Conqueror (Yale University Press, 2016) 463.
[2] Sally Harvey, Domesday: Book of Judgment (Oxford University Press, 2014) 2.
[3] Royal Commissions Act 1902 (Cth) s 1A.
[4] Cynthia Puryear, ‘The effects of the Norman Conquest on Anglo-Saxon Aristocracy’ (Honours Thesis, University of Richmond, 1976) 17.
[5] David C. Douglas (ed), English Historical Documents (Oxford University Press, Vol 2, 1953) 21.
[6] Sally Harvey, above n 2, 66.
[7] David P. Roberts QC, 'The First Royal Commission' (2010) 68(6) The Advocate 853, 857.
[8] Open University (14 February 2000) <https://www.open.edu/openlearn/history-the-arts/history/social-economic-history/opening-the-domesday-book>.
[9] Email interview with Dr James Kane, 19 June 2019.
[10] David P. Roberts QC, above n 7, 859.
[11] Sally Harvey, above n 2, 305.
[12] Alan Frearson, ‘Domesday Book: The Evidence Reviewed’ (1986) 71 History 375, 383.
[13] Brendan O'Connor (1 September 2015) <https://www.huffingtonpost.com.au/brendan-oaconnor/a-royal-commission-establ_b_8068144.html>.
[14] Sir William Holdsworth, A History of English Law, Vol 3 (Metheun, 4th Ed, 1936) 264.
[15] Royal Commissions Act 1902 (Cth) s 6DD(1)(a)(i); Giannarelli v The Queen [1983] HCA 41.
[16] Email interview with Dr James Kane, 19 June 2019.
[17] Hon Justice Peter McClellan, 'The Australian Justice System in 2020' (Speech, National Judicial College of Australia, 25 October 2008) 7.
[18] Clough v Leahy (1904) 2 CLR 139, 155-156.