Law and Administration under Henry II in United Kingdom
In our last lecture we discussed Henry II in his role as a French prince trying to build and maintain a great empire out of the various territories that his parents and his wife had given him.
This is probably how contemporaries, and likely Henry himself, viewed his efforts and career.
Yet Henry’s historical reputation in England derives mainly from another aspect of his activity. Henry is the father of the common law of England.
What is the common law? The older meaning of the word is the simpler. It means that there is, or should be, one law, royal law, for all English people. The phrase common law has a second meaning as well. It means the indigenous system of principles, procedures and precedents that evolved in England and which is the basis for the legal systems of Britain, the USA, most of Canada, and other English-speaking countries. Common law is distinct from Roman or civil law which survives today, in a form modified in medieval and modern times, in much of continental Europe, in Louisiana, and Quebec.
Henry’s legal initiatives lie at the basis of the common law system. His own goal was to enforce the ideal of the common law in its first sense — and in this he was largely successful, since from his time royal justice had a monopoly over almost all serious crimes. But the various solutions he and his advisors created for the problems of the 12th century were good enough to allow for the development of the common law in the second sense, of a law system.
Henry became a great legal innovator not because he had any great ambitions in that direction, but because of the specific political situation that he faced when he became king in 1154.
This situation can be summarized under three points.
Point one: By the twelfth century, following a long period of chaotic political competition, things had settled down a bit: strongpoints had been built, political units had been created, ruling families had become established dynasties. Rulers not only waged war on each other, but also competed administratively — each ruler sought to create a body of officials who could carry out his will without resort to force. This administrative competition centered on the right of justice, because no ruler was a ruler unless he could gain the consent of his subjects to accept his judgements in disputed manners.
Henry faced this challenge in an acute form. He held title to vast lands. Could he actually enforce his peace and justice in them, and make his rule a reality, or would effective power be acquired by his vassals on the spot?
Point two concerns England specifically. A tradition of strong government and effective if harsh royal justice had been thrown into doubt by nineteen years of civil war. His claim to the throne had been accepted by the greater lords largely because they feared to lose what they had gained if unrestrained competition between them continued. They wanted a king to give stability to the country. Lesser members of the political community hoped that a strong king would give fairer justice than the magnates, unsupervised, would. Thus in England there was a great desire for justice, for an alternative to brute force as a way of settling disputes and restraining violence.
Point three is Henry’s own desire to restore the royal prerogative, the king’s personal power, to the state it was in the days of King Henry I. The “good old customs of King Henry I” was the phrase that justified Henry’s regime. It was a phrase with a great deal of appeal to his English subjects. For Henry II, the appeal to the order of his grandfather’s time was also a claim to his rightful inheritance.
Thus Henry was much occupied, all his life, in defining and defending royal rights. Two examples:
The destruction of “adulterine castles”. These were castles built without royal license in the time of Stephen. Their existence weakened royal authority in the English countryside, and Henry very determinedly got rid of them.
He made sure that sheriffs, who had fallen under the domination of local earls, were recognized as royal officials, just as in Henry I’s time. Henry also established that earl was a titular honor, not an office and not a claim to territorial jurisdiction.
A third instance deserves more commentary: military obligation. Any medieval king had to be very concerned with the enforcement of his subjects to fight (under certain defined circumstances). Henry energetically asserted what he saw as his rights in this area, redefining things to his advantage when he could.
One of the mainstays of Norman royal power had been the obligation of tenants-in-chief (direct tenants of the king) to fight as knights in the king’s army, accompanied by a certain number of their own tenants. This was called “knight service.”
This obligation had become imprecise over the years. In 1166, Henry held an inquest or investigation into the knight service owed by the military and clerical aristocracy to the king. This was in part a fiscal measure. Magnates whose great-grandfathers had been glad to fight were now just as happy to stay home and pay “scutage” or shield-money instead of performing their knight service. Henry was happy to have the money if they took that option.
Henry knew, or at least suspected, that many of his great lords had enfeoffed more knights than the number they had formerly owed to his grandfather. So in the inquest he asked each tenant-in-chief how many knights he had owed Henry I and how many he had enfeoffed since then. It was Henry’s intention to make them serve with the higher number of knights, or pay scutage for them. He also wanted to establish how many “knight’s fees,” fiefs that could support a knight, there were in England so that aristocratic property could be taxed systematically. (Knight’s fees after his time became a standard assessment unit for taxation, replacing some of the obligation formerly assessed on hides and hundreds.)
Though Henry was interested in taxing fiefs and using them to raise troops, he was not content to exploit only the military aristocracy. At a later date, Henry required every free man, whether he was a knight or a vassal or not, to have certain weapons to use in the king’s service. Feudal service and the obligations of vassalage was an important part of royal power, but not the sum total of it. Henry thought of himself as the king of all the people, all the free people. In other words, they were all his to exploit.
The inquest of 1166 is just one example of how Henry shook things up. It also shows that he could go too far. He was only able to use the result of his inquest to collect scutage at the higher rate once, but then baronial and episcopal pressure made him back off. This shows that even as pushy a king as Henry II could not go too far beyond the consensus of the upper class as to what was reasonable.
In fact, Henry had to make his innovations in consultation with bishops, abbots, and his most important tenants-in-chief. Many of his most sweeping changes were made in council with his vassals, so that they could discuss and approve changes in taxation, justice, or other government policies.
On the other hand, Henry almost always got what he wanted out of such councils. We should ask why. I’ve already started sketching a picture of Henry as a powerful and energetic king. How did an 18-year-old attain this position after an era of civil war?
An important reason that Henry quickly became an effective king was that he offered the English upper class a stability that most wanted.
Let us look at a specifically legal innovation that illustrates how royal self-interest and the interest of landowners, great and small, went hand in hand.
One of the issues that exercised the rich was legal protection for their title to land. This issue of security of property was much on people’s minds because during the civil war lots of land had changed hand by force, and everyone had reason to worry about holding on to what they had. Even the restoration of traditional legal norms wouldn’t solve this worry, because it called for trial by battle to settle questions of landownership.
Henry and his officers devised a number of standard writs, or standard legal procedures that provided free tenants a certain security.
The writ of novel disseisin. Someone who had been recently dispossessed (disseized) by force could buy this writ, which commanded the sheriff or royal justices to call together a jury of local men, who under oath would declare if indeed the plaintiff had been recently dispossessed. If the jury said he had, he got the land back, with no questions.
The writ of mort d’ancestor had a jury a man’s claim to a hereditary tenure. If a man’s ancestor had held the land on his day of death, and the plaintiff was his closest heir, the plaintiff got the land.
Of course these writs did not solve all land problems. The man who had seized the land might say that he had taken it because he had legal right to it. This more complicated question of legal right as opposed to simple possession was settled by a long complicated procedure called the Grand Assize, which also involved a jury. But even the Grand Assize was an improvement over trial by battle, and it produced a permanent record of who owned the land.
The Grand assize and the various possessory writs were a popular innovation because they were simple, clear-cut ways of settling upper-class disputes over land, possession of which made them the upper class in the first place. They were also a great boost to royal power. It made the king the ultimate protector of all free men against their feudal lords, if any, and thus expanded the jurisdiction of royal courts at the expense of feudal courts. It forged a direct link between the king and the whole knightly class, at the expense of earls and barons.
Juries were a key device in Henry II’s legal system. They were not new — similar panels had settled disputes in the past. The main use of the jury was to provide the royal government with information on which judgements could be made, not usually bodies with the power to make judgements. But Henry II made extensive use of them in his reforms of the criminal justice system.
There was a feeling in the early part of Henry II’s reign that crime was getting out of control. (In the aftermath of civil war there were even more goons, thugs and bandits around than usual.)
Part of the problem was the cumbersome legal system. It depended on the sworn accusations of individuals to bring criminals before the courts, and this could be risky for the accuser. If the accused was found innocent, the accuser was punished.
Also, the traditional methods of finding guilt, ordeal and oath-helping, were falling into disfavor. The ordeal appealed to God’s judgement by throwing the accused into cold water to see if he floated, or subjected him or her to some other test. Oath-helping involved the accused finding a certain number of respectable supporters to swear to his or her trustworthiness. The intellectual currents of the 12th centuries cast doubt on both methods. The vulnerability of oath-helping to manipulation is obvious. But deeply religious men were equally suspicious of the ordeal. They began to feel that the appeal to God was unworthy, and that human justice was and should be sufficient for human problems. Indeed, confidence in human judgement, especially among rulers and their judges, was high. Human judgement would be more successful in bringing the bad guys to book.
Henry II did not replace the traditional methods, but he did try to supplement them to make justice more effective. His reign introduced the grand jury, still used in the United States to indict defendants, that is, to determine that they should be tried. In 1166, after a large royal council on the issue of crime, juries from every hundred and village were summoned to the county court to declare the names of those reputed to be guilty of murder, larceny, or harboring criminals, since 1154, when Henry became king. The sheriff was to arrest these people and they were to be tried before special touring royal justices. These people were still tried by ordeal, and those found guilty were hung or mutilated as the law required.
Ten years later juries were given the power, or perhaps the obligation, to identify men of bad reputation who passed the ordeal to leave the country anyway. This is the very beginning of the power of the jury to judge — the evolution of the jury into a body that decided guilt or innocence took another century or so.
Nowadays, the jury is usually, and quite rightly, seen as an adjunct of democracy — Anglo-American juries contrast with the powerful judges of the Roman law tradition, who make all the decisions themselves. Twelfth century juries, however, were not expressions of popular political power — or at least not simply that. Local people were being compelled to co-operate with royal justices to enforce the king’s peace. In many cases the people may have been happy to cooperate, but others probably resented what was an onerous intrusion into the lives of local communities. The use of juries in Henry II’s time, like the use of juries or inquests by earlier kings like William the Conqueror or Charlemagne, was an expression of royal power at the grassroots level. (If also perhaps an acknowledgment of how much power remained at the grassroots level.)
On the level of the realm as a whole, Henry’s consultative assemblies of barons and great churchmen played a similar role, that of magnifying the royal power. Occasional resistance to or criticism of royal policy was possible. Usually, however, people were called together to hear the proclamation of the royal will by the king or his officers. Thereafter, the people were supposed to help implement that will, with no backchat. That juries and parliaments might become expressions of the popular will, bodies that might oppose the king, that was no part of the king’s plan.
I should mention briefly that the use of specifically appointed royal justices, both itinerant ones and permanent ones at Westminster, was a big part of making royal justice available to all. Henry establishment of a permanent court at Westminster, so that plaintiffs did not necessarily have to follow the king around, was very popular. This court became in time the court of common pleas.
Henry’s innovations, however popular or unpopular they may have been at the time, were not intentionally the foundation of our democratic system, or of our legal system with its presumption of innocence and commitment to due process. Rather those policies were the tools of what can be called Angevin autocracy. Henry, as perhaps the most successful of twelfth-century princes, was using the new tools of literacy and sophisticated legal doctrine, the learned men produced by the schools and by his own court, and the possibilities of an increasingly monetary economy to make himself one of the strongest kings England ever had.
Because of the foundations he laid, royal power continued to increase in the reigns of his sons Richard and John. Eventually it would provoke a reaction. But in the short term, Henry won all his battles, save his battle with the church — the one organization that could match, or overmatch Henry in legal and institutional resources.
Copyright ©1999, Steven Muhlberger.
Civil Justice under Henry II
Criminal Justice under Henry II
History of Magna Carta
Royal Justice in the Feudal Period (4.8)