Henry II Bestows on Englishmen the Boon of Impartial Justice
Since his only legitimate son had been drowned, Henry I, son of the Conqueror, had nominated as his successor his daughter Matilda, wife of Geoffrey Plantagenet, Count of Anjou. But when the old king died in 1135, the Great Council, deciding that a woman was unfitted to rule and calling out of abeyance the old English right of electing a king, offered the crown to Henry’s nephew, Stephen of Blois, son of the Conqueror’s daughter.
Of Stephen a contemporary chronicler wrote: “A mild man, soft and good, and did not justice. He began many things, but never finished them.” He was certainly too easy-going to control the little-disciplined people who called him to be their king, and during the nineteen long years that he occupied the throne a period of anarchy existed in England never equalled in a thousand years of history.
Weakness in a monarch is quickly discerned, and there are always those ready to take advantage of it. In Stephen’s case it was the Welsh and the Scots who marched into England, massacring and raping and despoiling the country, while the king made no move to stop them. Had it not been for the aged Thurstan, Archbishop of York, who called out the Yorkshire nobles, himself leading them into battle at Northallerton, where he defeated the invaders, no one can say what might have happened to the country.
Nor was Matilda, of genuine Norman stock, prepared to surrender her rights without a fight. In 1139 she landed in England with an army, and already dismayed by the effects of Stephen’s weakness, many English barons flocked to her banner. For the next eight years England was racked by civil war.
During these eight years the anarchy and disorder increased. Many of the barons, seeing an opportunity for personal gain, sided first with Stephen and then with Matilda. Without the constraint of a strong hand, which for the past seventy years the kings of England had exercised through the royal council, many of the barons built themselves castles without licence, and from them sallied forth to wage private war upon their neighbours. Some even brought foreign mercenaries over from Europe to fight their battles for them, and these foreigners made things even worse.
“They put men in prison for their gold and silver; they hung them up with their feet and smoked them with foul smoke. They put knotted strings round their heads and writhed them till they went into the brain. They put them into dungeons crawling with adders and snakes,” wrote Richard of Hexham, an historian of the times.
And while men fought, the country went to ruin. No plough cut a single furrow; no crop was planted, no harvest gathered; and no man knew whether he still possessed his cattle or not.
Even those who were responsible for much of the crime that was committed eventually saw that if the state of affairs were allowed to continue little good would their ill-gotten gains do them, and by degrees a universal desire for a strong king’s rule emerged among Englishmen and Norman barons and knights alike and the famous English genius for compromise began to work.
An agreement was reached by which Stephen was to rule until he died, and then was to be succeeded by Henry Plantagenet, Count of Anjou, Matilda’s son. In 1153, Henry crossed to England and rallied his mother’s supporters. Within six months he had completely transformed the scene, and when in the following year Stephen died and he was crowned at Westminster, every bell in England rang for joy.
Henry was just twenty-one. From his father he had inherited Anjou, Maine and Touraine, and in his mother’s name had seized Normandy. By marriage to a woman twelve years older than himself, and the greatest heiress in Europe, the divorced queen of Louis of France, Eleanor of Aquitaine, he gained control of half France and doubled the extent of his domains. When he assumed the crown of England his writ ran from the northern boundaries of Northumbria to the Pyrenees.
Henry was a scholar and a champion at arms. An eloquent speaker, he delighted in learned conversation; he was never happier than when exchanging rude jokes with his soldiers round the camp fire. In utter contrast to Stephen, he had a will of steel, a grim determination to achieve his ambitions, and a fund of energy which disturbed all who came into contact with him. He had one overriding passion, to restore order and justice to England, and maintain order within his other realms.
He was no sooner on the throne than he set himself to this task. He ordered all the mercenaries to leave England, he ordered the barons who had built unlicensed castles to pull them down, and he demanded the return of all Crown lands which had been filched during the troubled years.
When the earls whom his mother and Stephen had created thought to ignore him, he marched against them, and so frightened some of them that they obeyed at once as soon as he approached. This settled, he turned against the Welsh and Scots. The first he sent scuttling back to their marshes and mountains, the second he forced to return those parts of Northumbria they had seized and compelled them to come to Chester to do homage to him there.
In what seemed to be no time at all, the country was in good order once more. But Henry was not content to rest upon his laurels. He desired to leave the kingdom greater and stronger than it had ever been, and this meant reform, for he had no ambition to increase the extent of his domains.
To appreciate his achievements, it is necessary to consider briefly what the feudal system meant to England at this time.
Theoretically, the king owned all the land and was the fountain-head of all honour. He honoured those who were worthy of honour by granting them estates, which they held from him, again in theory, as tenants. In practice, however, once the king had made a grant of land to a man, whether he also bestowed a peerage or some lesser title or not, it was a grant in perpetuity, so that in fact the tenant really became the owner.
In the same way that the king granted land to his tenants-in-chief, as they were called, so they, in turn, made grants from their own estates. These lesser tenants were, however, considered to be tenants of the king as were the tenants-in-chief.
The king made a grant of land to a tenant-in-chief on the understanding that in return the tenant would swear him allegiance and fulfil certain conditions of service. According to the size of the grant, so were the services regulated. The first and most important of these conditions was to provide the king with men and money, if he needed the latter, with which to fight his enemies.
The lesser tenants held their estates on the same conditions and they made to their overlords the same promises of service. It was understood, however, that the first allegiance of every man was to the king. Should a dispute arise between the king and one of his tenants-in-chief, the lesser tenants’ loyalty was to the king.
In addition to the exchange of land for services, the overlord, whether king or tenant, owed his tenants protection. There was, therefore, a basis of mutual obligation in all the relationships between overlords and tenants, in whatever degree they might be; that is to say, whether they were king, earls, barons, knights or lords of an unennobled manor.
From this it will be seen that the ownership of land was a paramount, indeed the paramount, consideration. The more land a man owned, not only was he wealthier, he was more powerful. It was this that lay at the root of all struggles. There was a constant attempt by the majority to increase their holdings, for which they were prepared to fight, if not always oil the battlefield, then in the feudal courts; and in the latter, the only means of determining ownership was trial-by-combat, when the two contenders fought one another, and the one who won the contest won the possession.
To preserve the stability of his realm at all, a king in such conditions had to be able to control his tenants-in-chief. Previous kings had been content to do this by threats of waging war against them. Henry, however, preferred to do so by other means. Any baron who infringed the royal rights quickly found himself required to pay a fine, or increased rents.
To keep an eye on the doings of his sheriffs, whose duty it was in the first place to make the levies and collect the dues on his behalf, Henry sent out the high officials of the Exchequer, known as the Exchequer barons, on circuits. That is to say, each Exchequer baron was given a certain area, and he sat in the court of each sheriff in that area in turn.
At first the main function of these Exchequer barons was merely to keep watch to see that the king received his proper financial dues, but as time passed he empowered them also to hear certain pleas which would normally have been made direct to him.
For many centuries in England it had been regarded as the king’s duty to see that justice was done and every freeman in the land had the right to appeal to the king if he believed himself to be wronged. To begin with such pleas had to be presented to the king in person, but after a time matters of lesser importance could be taken to the sheriff, who was empowered to make a decision in the king’s name.
Under this system, the criminal jurisdiction of the Crown was limited to contempt of the king’s person, in other words, treason, and breaches of the king’s peace committed on the royal estates and the highways. For dealing with all other types of crime the sheriff was responsible.
Now Henry changed this still further, and by transferring the sheriff’s chief judicial powers to the Exchequer barons on circuit he extended the criminal jurisdiction of the Crown to all crimes, though he was not personally involved in reaching the verdict or pronouncing sentence.
Within a few years, further changes were made. Since the system was seen to work well, it was clear that it would be advantageous to have trained and experienced officials to dispense the criminal law in this way, and slowly there came into existence a body of trained impartial judges capable of meting out true justice.
Under the old system, where a man accused of a criminal act was tried by the local sheriff he could not always be sure of a fair and impartial hearing. Many sheriffs were open to bribery, and this meant that the man who could pay the most could be sure of the verdict, whether or not he was guilty. Henry’s new judges, by having no local interests, were less open to corruption, and as they were constantly travelling about the country they were unlikely to develop such interests.
It then occurred to Henry and his judges that if these procedures could work well in criminal cases, they might be extended to a class of case which, while not criminal in the sense that it was murder, rape, forgery, arson, robbery or larceny, was perhaps even more common than any of them.
During the late civil wars, one of the commonest acts had been the habit of an overlord to seize land from a neighbour not as powerful as himself on some trumped-up excuse. The war at an end, the victim of such a “theft” had two courses open to him: he could either rally his own tenants and supporters and try to get the seized land back by force, or he could appeal in the overlord’s court for the right to get it back by trial-by-combat. Since the overlord was in many cases the man who had seized the land, the victim could be sure that delays would be organized to prevent the trial-by-combat from ever being held, and such disputes might be carried over from one generation to the next.
Henry found that there were so many cases of this kind, that he devised a system of writs. A writ was a Royal Command which restored to a freeman lands which had been forcibly seized from him. The writ commanded the sheriff to order the overlord of any seized land to restore it at once to its rightful owner or appear before the King’s Court to argue why he should not.
This kind of writ was called praecipe, and there were two other kinds: the writ novel disseisin, which ordered the sheriff to restore his lands to any freeholder who had been dispossessed pending trial and to summon “twelve free and lawful men of the neighbourhood to recognize and declare” before the king’s judges who had the rightful possession; and there was the writ mort d’ ancestor, which protected a freeholder’s heirs against all claims which could not be proved in the royal courts.
The effect of these writs was threefold. They protected a man’s right to possession as distinct from his legal ownership; they made any freeholder who had a claim plead his claim in the king’s court and not in the overlord’s; and they replaced the barbaric trial-by-combat with the system of inquiry or recognition by “twelve free and lawful men of the neighbourhood”.
These twelve men, soon called jurymen, were men who were experienced in questions of this kind and who had special knowledge of the circumstances of the claim. They were required to answer questions of common knowledge put to them under oath by the king’s judges.
This, too, was soon seen to work well, and presently the system was extended to actions to determine legal ownership. A freeholder whose title to his land was challenged could claim, by Grand Assize, to have his claim tried in the king’s court instead of his overlord’s court. Here, too, twelve knights of the shire were required to declare in the presence of the king’s judges under oath which of the two parties had the better title, either from their knowledge or in their opinion. Once their decision was made and declared, it was final.
Soon the system of jurymen was extended to criminal justice. For example, the assize judges of Clarendon were commanded “to inquire from twelve lawful men from every hundred and four from every township whether any of their neighbours is guilty of having committed a felony”. Only those named by these jurors were brought to trial.
From this it was a short step to the system by which twelve men, ordinary men, having heard the facts of a case presented were required to determine whether the facts were true or not. Granted the safeguards of the law, there was no fairer way in which a man might be judged. Twelve ordinary men, without knowledge of the law, required to base their decisions on ordinary common sense were without doubt the most impartial judges of all.
The British have a reputation that is world-wide of being the most law-abiding nation on earth. For a nation to be law-abiding its people must have full confidence in the administration of justice. The jury system gave the British this confidence, and made British justice the envy of the world.
- Burns, Robert. The Death of the American Trial. University of Chicago Press, 2009. ISBN 978-0-226-08126-7
- Irvine, Andrew David (2008). Socrates on Trial: A play based on Aristophanes’ Clouds and Plato’s Apology, Crito, and Phaedo, adapted for modern performance. Toronto: University of Toronto Press. ISBN 978-0-8020-9783-5 (cloth); ISBN 978-0-8020-9538-1 (paper)
- Sadakat Kadri, The Trial: A History from Socrates to O.J. Simpson. HarperCollins, 2005. ISBN 0-00-711121-5
- American Bar Association’s History of the Jury
- Aristotle’s Athenian Constitution