Introduction
The common law allows ‘self-help’ remedies to a limited degree, provided that the exercise of self-help is reasonable. This allows the plaintiff to take the law into his or her own hands, and remedy the wrong without a court order. However, as Winfield observed in The Province of the Law of Tort, ‘self-help has always been reckoned as a perilous remedy owing to the stringent rules against its abuse.’
Some years back, I learned of an unusual ‘self-help’ remedy—albeit a remedy existing in the shadow of the law, with a judge just behind it—which still operates in the Channel Islands of Jersey, Guernsey and Sark. The Bailiwicks of Jersey and Guernsey are self-governing British Crown Dependencies.
That remedy is the clameur de haro. The criant(person raising the clameur de haro) speaks certain words in a certain way to the alleged wrongdoer, obliging the wrongdoer to cease what they are doing (without a court order), and have the matter brought before a judge for adjudication. Lester Little has noted:
In late antiquity and in the time of the Germanic successor kingdoms, “clamor” was a juridical term meaning claim or appeal. To make a clamor (facere clamorem) meant to go before a magistrate to bring a suit, present a petition, request a favor, or appeal a decision. But there is more to this term than just its legal aspect, for it also connotes commotion and shouting. When a common person in late Roman imperial times made a clamor before a magistrate, who was of course seated upon a throne elevated on a platform, he stood in a boisterous crowd and raised his hand and his voice to get the attention of this local representative of Roman sovereignty.
The History of the clameur de haro
The clameur de harohas Norman origins, reflecting the fact that the Channel Islands were once part of the Duchy of Normandy. The word harois purportedly derived from the name of the first Duke of Normandy, Rollo (or Raoul). Guyot recounts that Duke Rollo was known for his justice and fairness, and if his subjects were wronged, they would simply call outha Raoul, which was corrupted to haro. After Duke Rollo’s death, this call for justice was maintained.
The most famous successful clameur de harooccurred during the funeral of William the Conquerer, King of England and Seventh Duke of Normandy (also known as William the Bastard). William died in Rouen in 1087. He had wanted to be buried in Abbaye-aux-Hommes, the Abbey he had built in Caen and so his body was taken there.
However, when the funeral procession reached Caen, a man named Asselin interrupted the funeral with a clameur de haro, claiming that the Abbey had been built in part on his lands (including the area in which William was to be buried) and that he had never been paid for this. A hasty investigation showed Asselin’s allegation to be true, and either the Abbot or Henry, the only one of William’s sons to be in attendance, arranged for Asselin to be paid for his land. The farcical nature of the funeral did not stop there. The grave for William was too narrow, and when they attempted to force his body into it, the corpse exploded, spreading a foul odour through the church.
The Clameur de haro (1792-1845), a plea for justice in Norman law; Picture credits: C. Lemercier, Charles Rossigneux, or F. Godefroy (La Normandie historique, pittoresque et monumentale ou, Souvenirs d’un voyage, by Amable Tastu, Paris, Chez P.-C. Lehuby, 1858) via Wikimedia Commons
The clameur de haro(as well as other species of clameur, including the clameur de révocatoire,which sought to effect rescission of unfair contracts) were still operative laws of Normandy in the late eighteenth century, according to Guyot, but the French Revolution of 1788 put an end to seigneurialism in France.
There is still perhaps a very limited role for the clameur de haro in France: a public figure judged by the court may seek to write or address judges and government ministers publicly. The controversial French writer Louis-Ferdinand Céline revived this practice when he was convicted of treason for his association with the Vichy regime, writing numerous letters to judges protesting the result. Generally, lawyers do not advise clients to follow Céline’s example.
Historically, a monastic clameur was developed in regions of modern France, Belgium and Germany, allowing religious orders to raise a clameur against those who infringed their property rights. The presence of God as a witness and dispenser of divine retribution was important. These clameurs had no legally binding effect, unlike the clameur de haro, but their ritual importance could force the person accused of infringing to negotiate.
The Continuation of the clameur de haro in the Channel Islands
The clameur de haro remains part of the common law of the Channel Islands and is still used to the current day. There must be an appert péril (immediate or obvious peril) to the criant’s possession in land. The criantmust kneel, with one hand in the air, in front of two witnesses and the alleged wrongdoer (see, In the matter of a Clameur de Haro, Re: C (2015/17) (Guernsey) [11]-[14]),and say the following words:
Haro! Haro! Haro! À l’aide, mon Prince, on me fait tort. [Hear me! Hear me! Hear me! Come to my aid, my Prince, for someone does me wrong.]
After this, the criantmust recite the Lord’s Prayer in Norman French, and in Guernsey, must also say Grace in Norman French. The alleged wrongdoer must stop his or her actions immediately until the matter can be brought before a judge (with slightly different procedures on different Islands).
For the clameur de haro to be upheld, the actions must be a wrong. In this way, the clameur de harois akin to a self-help version of an English quia timetinjunction, when a plaintiff obtains a court injunction to restrain threatened wrongs where there is a ‘real and imminent risk’ (as required by Ineos Upstream Ltd v Persons Unknown [2019] EWCA Civ 515, [2019] 4 WLR 100, [34](1) (Longmore LJ)). However, as the Court of Appeal of the Royal Court of Jersey has observed in 2021, in In the representation of D.J. Sheppard re Clameur de Haro [2021] JCA 088, at [4]:
It [the clameur de haro] is particularly unusual as an injunctive process because it requires no affidavit from the person raising it, no undertaking in damages and indeed no justification other than that that person’s rights to possession were being disturbed. There is no order from a Court granting it…
In the current day, the clameur de harois only available in relation to possessory interests in land on the Islands, and in Jersey, only if the land has been in the possession of the person for a year and a day (see AG v de Carteret 1987–88 JLR 626; AG v Flint 2000 JLR N–52).
The Historical Similarity between the clameur de haro and the ‘Hue and Cry’
This was not always the case. Initially, the clameur de haroapplied where there was any crime or wrong. A compiler of Norman coutume (customary law), known simply as le Ancien Couztumier, stated:
Le duc de Normendie a la court du harou, et en doit faire enqueste s’il fut cryé à droit ou à tort; car il ne doit estre cryé, fors pour cause criminelle si comme pour feu ou pour larcin ou pour homicide ou aultre évident péril; si comme se aulcun court seure d ung aultre, le cousteau traict.
[The Duke of Normandy has a court of haro, and he must make inquiries into whether it was cried rightly or wrongly; it should not be cried, except for criminal acts, or for fire or for theft or for murder or other evident peril; as if no one in the court is safe from one another, with a drawn knife.]
…
A ce cry doivent yssir tous ceulx qui l’ont ouy; et se ilz voient mesfait ou y ait peril de vie ou de membres ou de larcin, pourquoy le malfaicteur doye perdre vie ou membre, ilz le doivent retenir ou crier harou après luy, autrement sont-ilz tenus a l’amender au prince, ou de s’en desrener qu’ilz n’ont pas ouy le cry, se ilz en sont accuez: se ilz tiennent le malfaicteur, ils sont tenu à le rendre à la iustice, et ne le peuvent garder que une nuyt si ce n’est pour appert péril.
[To this cry must come all those who have heard it; and if they see wrongdoing or there is danger of life or limbs or theft, this is why the wrongdoer must lose life or limb, they must restrain him or shout haro after him, otherwise they are bound to make amends to the prince [i.e. pay a fine], or to abstain from the haroon the basis that they have not heard the cry, if they are accused of ignoring it: if they hold the criminal, they are required to bring him to justice, and can only keep him one night except for apparent peril.]
Therefore, at first, the clameur de haro was like the “hue and cry” of common law, which is described by William Blackstone as follows:
An hue (from huerto shout) and cry, hutesium et clamor, is the old common law process of pursuing, with horn and with voice, all felons, and such as have dangerously wounded another.
Blackstone notes that the hue and cry is supported by the Statute of Winchester of 1285, (13 Edw. 1. St. 2. c. 4). This statute provided, among other things:
- that there was collective responsibility upon the ‘hundreds’ (or administrative regions) to compensate for robberies if offenders were not discovered and apprehended (s 2);
- for a night watch to be established in towns (empowered to arrest strangers found roaming the town after sunset) and that a “hue and cry” was to be raised if a stranger found roaming the town did not consent to arrest (s 4); and
- that every man between the ages of fifteen and sixty owning certain property was to have certain weapons so that they could join the “hue and cry” to catch felons (s 6).
This Act governed policing in the United Kingdom from 1285 until the enactment of the Metropolitan Police Act 1829 (10 Geo. 4. c. 44). From at least the 9th century onwards, sheriffs (and later other officers) were entitled by the common law doctrine of posse comitatus (Latin for “power of the county”) to raise a group of civilians to enforce the law. For almost 600 years, English criminal law was therefore enforced by civilians (including the posse comitatus), but also by a range of officials including sheriffs, watchmen (established by the Ordinance of 1233), constables and justices of the peace (established by Edward III to reduce the power of sheriffs).
From Anglo-Saxon times onwards, sheriffs were responsible for hearing serious crimes in tournsand county courts (and for collecting taxes), but from the 12th century, with the establishment of the common law by Henry II of England, travelling courts or ‘eyres’ held ‘assizes’, namely courts formed in each county to try crimes and civil actions. The Magna Carta stripped sheriffs of much of their remaining power when they were removed from the pleas of the Crown.
The risks of creating a posse to enforce justice are evident: there is always the possibility that the posse could use their power unjustly. In 1583, perhaps for this reason, the Parlement of Normandy reformed the coutume, ensuring that that the clameur de harocould only be used for civil wrongs, not criminal wrongs.
Even in the current day, in English common law, it is easier to get specific performance of contracts involving land (see eg, Adderley v Dixon (1824) 1 Sim & St 607, 610; 57 ER 239, 240), or to obtain injunctions for torts involving interference with property rights in land (see eg, Woollerton and Wilson Ltd v Richard Costain Ltd [1970] 1 WLR 411). Conversely it is more difficult to obtain specific relief in relation to other interests, such as property interests in goods or bodily integrity. I had wondered if the present-day availability of the clameur de harofor possessory interests in land indicated that the common law remedial privileging of property rights in land had ancient Norman roots, but it seems not. The restriction of the clameur de haroto possessory interests in land was only introduced to the Channel Islands in the 17th century.
It does show that both English common law and Norman law sought to restrict self-help, and to prevent people from using the law unreasonably. Moreover, as with interlocutory injunctions, difficult questions arise where a court finds the clameur de harohas been improperly used.
Conclusion: Don’t Cry haro Lightly!
The clameur de haro has not fallen into desuetude in the Channel Islands. In 2023, Ms De Gruchy sought to restrain the Parish of Trinity in Jersey from carrying out works to cut back branches overhanging a parish road, Rue Becq. It was found that she had not been entitled to raise the clameur de haro and she was fined £1000. Meanwhile, legal costs to the parish were estimated to amount to £70,000. The Parish of Trinity then sought indemnity costs against Ms Gruchy, but it was recently decided that she only had to pay the Parish’s costs on a party-party basis. In In the matter of the Representation of Nicola Roselle De Gruchy and the Parish of Trinity and in the matter of a Clameur de haro [2024] JRC 082, the court noted at [38]:
The Clameur de Haro has none of the safeguards of more usual modern injunction procedure. Accordingly, it must be employed with circumspection. There are other remedies available to vindicate title/ownership and indeed to create an ex parte holding position by application to the Court in the usual way.
The message is clear: where possible, use procedures which allow the defendant’s interests to be safeguarded in the event that the plaintiff is not entitled to relief.
Posted by Professor Katy Barnett, Melbourne Law School, University of Melbourne
British Association of Comparative Law 
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