J.P.Sommerville

 

 

Henry II and Common Law

 
 
           

bullet Henry II has a good claim to be the founder of English Common Law. In a series of Assizes (meetings with barons that issued binding decrees), many of its basic principles were established.
 

1166 - Assize of Clarendon Established the grand jury system for investigating recent crimes
1176 - Assize of Northampton Established a jury of presentment to decide which cases should be tried
1181 - Assize of Arms Ordered that all free men should keep arms and be prepared to defend the country
 


An early English illustration of trial by combat.
 

Trial was by ordeal until 1215; male serfs underwent trial by water; freemen and all women, trial by hot iron. There was also trial by combat - "wager of battle."

["Wager of battle fell into disuse, but was not legally abolished until 1819.]

Ordeals were supposedly a way to allow God to reveal his judgment, but the Church's disapproval led to their replacement with trial by jury.
 

bullet During Henry's reign the principle was firmly established that only royal courts (not the courts of local lords) could try criminal cases, or cases involving the ownership of freehold property. (Local lords continued to have the power to try minor cases involving their villeins).
 

Actions by which local juries of 12 free men decided on title to property

Novel disseisin A freeholder who believed that land had been illegally seized could bring this action to recover the land and to gain damages to compensate for the wrongful seizure.
Mort d'ancestor An adult heir to property held as a fief brought an action to claim right of inheritance when the property had been wrongly withheld.
 

bullet  In criminal cases juries named suspects who were then tried before the King's judges (called "Justices".)
 

The King's Justices

  1. Justices in eyre (or itinerant justices) were sent from the center to tour the counties on a regular basis. They toured the whole country every seven years or so.
  2. Other justices heard cases at the Westminster Courts - which became the courts of Kings Bench, Common Pleas and Exchequer.


The hall of Oakham Castle
used as an Assize court from 1229 to 1970

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Henry II's system allowed for strong central control over the administration of justice.

 

Law and property

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The reign of Henry II was important for providing the stability that made possible the establishment of secure property rights.

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The principle of primogeniture (i.e. the inheritance by the eldest son of the entire landed estate) enabled the English nobility to consolidate landholding.
[Other family members were not left impoverished - widows customarily held a "jointure" of one third of the estate during their lives; daughters were given a "dowry" to ensure a profitable marriage. The losers were younger sons, who were generally left to make their own way in the world with comparatively little financial help].
 

Aydon Castle
- a 13th Century manor house in Northumberland

 

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Another principle established about this time was that an individual could sell or give away land. (This may seem obvious, but on parts of the European Continent, land was a family asset in which lords and others held so many rights that its sale as a commodity was very difficult.) This meant that England developed an active market in land, which increased social mobility and economic change.

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Ranulf Glanville (chief justiciar of England from 1180) possibly wrote Tractatus de legibus et consuetudinibus regni Angliae (Treatise on the laws and customs of the kingdom of England.) Certainly this work shows that the systematization of English law - whether or not consciously planned by Henry II - was already well developed.

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It is unclear whether Henry II really introduced a new system of justice into England, or whether the increasing use of written records simple makes it appear that changes date from this time (because although they actually began earlier they were not recorded.) However, even if Henry II merely systematized legal customs already accepted in England, this did encourage the resort to law courts rather than to violence or community policing that had become common in Stephen's reign.

 

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