Traditionally Henry II has been seen as the originator of the common
law in England. The reforms he made during his reign have been seen to
have given his predecessors more power across the whole country, as Henry
was able to make sure that the kings justice was relatively the same across
the country. M.T Clanchy put forward two major principles in the reforms
of the English law, firstly in civil law, a tenants title could only be
questioned in the court under the king's authority as he was overlord of
all freemen and property. This gave the chance for any freeman to question
the right of land ownership and try to prevent any unlawful taking of land.
Secondly, in Criminal law, the king would have sole justistiction over
everyone, including members of the church and serfs. This, in practice,
gave the English kings ultimate authority over all members of his realm
and the power to over see all cases that the royal justice system wanted.
Henry was able to fulfil these principles through two outlets, the invention
of assizes and the standifcation of juries across England. In the twelfth
century the jury was much different form the form it follows today and
consisted of a group of people fro a certain community who swore to tell
the truth about something they knew or had investigated. Juries had developed
in other countries in Europe, such as France, where the judge would personally
hear each jurors opinion independently and make the final decision. This
developed much differently in England as the judges wanted to do no more
that declare law, therefore left the final decisions to be made among the
jurors, creating a system much more diverted from that of its continental
counter parts. Henry's second instrument was that of the assize. Assize
were instructions to judges and sheriff of how the king believe law should
be carried out. These at the time were not real laws as we see them today,
later developing into parliamentary acts, but they allowed Henry to by-pass
baronial consent, therefore speeding up the process he could make the changes.
After looking at the general changes, one must discuss why these reforms
happened and if they were actually reforms. Historians have given several
different views of this,
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1) Henry wanted a quicker form of justice, either from his own widely known
impatience or because of the need of profits of justice to help him defend
his continental land.
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2) Henry needed a more efficient justice system to raise the amount of
profits of justices for the reason described above.
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3) Henry had to gain control of the church and Barons which has caused
problems in Stephen's reign and regain control of the country.- seems unlikely
because may of the changes happened well into Henry's reign and for his
first years he still use the same methods as Stephen.
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4) (view of M.T Clanchy) He did no more than write down what he believed
were the laws of his grandfather, Henry I, and just used the assizes to
establish it nationally.
It does seem that there was no conscience pattern of reform, as Henry did
what was needed when it was needed, as he did not drastically change the
law, just created a way they became more standadized and efficient across
England.
Henry was able to develop the civil law by use of the Grand assize and
Petty Assizes. The Grand assize offered a jury of twelve knights in alternative
to the trial by battle. These dealt with the most important civil cases
concerning ownership, usually those of Henry's tenants-in-chief or the
church, giving an effective and quicker way to deal with the problems that
the traditional processes of civil law.
The Petty assizes dealt with the possession of land and were open to
all freemen covered by the following assizes,
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1) Novel Disseisin- this dealt with the unlawful seizure of property or
disseisin. Through this assize cases became much quicker as Henry levied
fines upon those who delayed the cases. It purpose was to decide whether
aN unlawful action had taken place, relying upon the jury for the final
decision. This was quite limited because it only looked at who lived on
the land, not who had the rightful entitlement to the land disputed.
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2) Mort d' ancestor (1176)- This built upon the problems of the Novel Disseisin
and looked at the right of inheritance. The jurors had to decide whether
the heir was the actual legal heir and that his father had the right to
the land.
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3) Assize of Darrien Presentment(1179-80)- This assize was concerned with
whom should have the right to place a priest in a vacant tenancy by looking
who last chose the previous person their.
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4) Assize of Utrum _- This gave the jury the right to decide if a matter
of clerical dispute should be tried with the royal or clerical courts.
Both 4 and 3 can be seen as Henry trying to make sure that the church did
not by pass his laws and given protection within the clerical courts.
Finally when looking at criminal law, one must examine the Assize of
Clarendon. In general Henry made the criminal law much more harsher and
efficient, as he saw there was not enough criminals being caught or convicted.
The Assize of Clarendon tried to tackle this by giving the sheriff, and
later the judges, the right to over-rule the Barons to capture suspected
criminals who lived upon or hid within the baron's area. This was seen
to be Henry undermining the authority of the barons, as this action brought
them all under his rule and they could not harbour criminal wanted by the
royal courts. Also jurors of an area were expected to accuse those know
criminal who had to been caught to be brought up to trial, and created
a greater chance of those who were convicted to be sent into exile. Henry
tried to bring everyone under his authority by professing in Clarendon
that all those accused of serious crimes, such as murder, where to be brought
to the royal courts, even if they were members of the church. This caused
many problems with the church, especially and most importantly with archbishop
Becket, as he took away the sanctuary the clerical court gave and made
criminal pay the full penalty he wanted to establish his own authority
across the country.
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K.D.Mooney hiu45d@bangor.ac.uk |
The Legal reforms of Henry II can not be underestimated,
they used the common law to rapidly expand and also provided his predecessors
with greater power across the whole country.
To give counsel and implement his policies Henry surrounded himself
with intelligent and experienced officials. The exchequer grew ever more
efficient in the collection of revenues and kept a close watch over the
accounting of sheriffs. The independent powers of the sheriffs diminished,
and their judicial authority was curtailed with the visitations of itinerant
justices.
The major reforms of Henry however, were his Grand Assize and later
his Possessory Assizes which popularised trial by jury for civil cases.
Previously disputes usually concerning land ownership would be settled
by a battle if a compromise could not be reached. The Grand Assize allowed
the defendent (the tenant of the land in question) at a price to have the
case decided by a jury of twelve knights who were summoned by the sheriff.
This provided a much more rational way of settling disputes. However, it
often took the jury a long time to reach a verdict. In response to this
Henry created three Possessory Assizes to provide speedier remidies to
the problems surrounding land ownership, these included:-
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Novel disseisin- This was concerned with the unlawful seizure of property
(disseisin). A jury would be asked the following question, has the plaintiff
been disseised unjustly and without judgement within the period covered
by the assize?
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Mort d' Ancestor- This was an extension of the novel disseisin paying particular
attention to the problem of inheritance. In this case the jury was asked
to decide whether the heir was the actual legal heir and that his father
had the right to the land.
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Darrien Presentment- Lords of villages had the right to place a priest
in a vacant tenancy. some villages however, had two lords and it often
became very confusing as to whose turn it was to choose a priest. The Darrien
Presentment simply worked out who last selected the priest.
If you had a grievance related to any of the above assizes you would have
to go to the chancery and get the appropriate writ, for example a writ
of Mort d' Ancestor. Thereupon you would pay for it and take it back to
the sheriff of your area. The case was then heard by a jury consisting
of twelve local people whose job was to tell the truth about something
they knew or had investigated. This is very different to modern day juries
who base their verdict around the evidence presented to them in the court
room. If the jury passed a judgement in your favour but the losing party
continued to hold the land in question then the whole weight of royal force
would back you up.
Why then were these legal reforms necessary? When Henry became king
of England he was also in possession of an extensive area in France which
was coming under serious threat by the king of France. Henry needed to
profit from justice in order for him to defend this land.
A more effective legal system and overall growth in the common law would
also allow Henry to spend more time abroad knowing that England was capable
of running itself effectively.
After the anarchy that occured in Stephen's reign it was also important
for Henry to secure quicker justice si that better order could be maintained
in the land and to allow him to exert his authority over the church and
Barons.
His exertion of authority over the church can be seen through the Assize
of Clarendon which was concerned with criminal law. It demanded that twelve
lawful men of every one hundred and four lawful men of every village should
declare on oath if any in their village had been accused or suspected of
being a robber, murderer, brigand or receivers of such since Henry became
king. This resulted in threatening clerical immunity, the church could
no longer protect clerks found guilty of the crimes in question and it
meant that they were now subject to ordinary secular punishment. It took
away the sanctuary the clerical court gave and made criminals pay the full
penalty.
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S.R.Hunter hiu405@bangor.ac.uk |