Whole of English law

The reign of Henry II is of supreme importance in the history of our law, and its importance is due to the action of the central power, to reforms ordained by the king… the whole of English law is centralised and unified' (Maitland) F. W Maitland's description of the importance of Henry II's reign as 'Supreme', and that's its effects 'centralised and unified' the 'Whole English law' are accurate but in an underdeveloped way. The wording used is very definite and whilst there is no doubt that he is credited with 'founding' the common law it took many years before it was moulded into a semblance of the system we recognise today.

It is necessary to examine the reforms he implemented and then observe the effect for good or for bad that they had on the legal system as it stood at the time. Henry II has been described as 'one of the most effective of all England's Monarchs'1. His reign ran from 1154 until 1189, and in this 34 year period the legal system underwent many significant changes. When he came to power, it was following the reign of his mother's cousin, Stephen. Stephen had done nothing to strengthen the sense of justice in the kingdom and as a result the barons had grown in power, making them a real threat to the superiority of the Crown.

The magnates were running their own courts for 'their' own people and applying their own laws. Justice under these circumstances was understandably impossible, the unchecked barons gave law when and where they saw fit and ultimately to further their own ends2. There would have been little if any uniformity in law. Another of Henrys main problems was the extent of his rule. He theoretically owned more land in France than the King himself3. As a direct result of this, he lived for more than half of his reign outside of England4.

Essentially Henry needed a way of taming the errant magnates and ensuring a fair legal system for his subjects, but at the same time making sure that it could continue to operate during his frequent absences. To do this he needed to secure all jurisdictional power under the crown. This had been delegated in the past to various courts and needed to be reclaimed and only issued under his name by those who he deemed fit. Henrys first notable action was to attempt to regain the power held by the church courts. To do this he created the Constitutions of Clarendon in 1164.

He claimed that because of 'dissention and discord'5, between the clergy and the lay justices, any clerical case tried in the church courts had to be removed to the king's court for judgement. The church had a relatively gentle method of punishment in that they simply reduced the guilty party from a clerk to a layman. As a large proportion of the population were entitled to refer to themselves as members of the clergy6 this meant that essentially they could get away with committing serious crimes without fear of serious retribution.

This stripping of holy orders was still to happen but now there would be a representative of the King present to oversee matters. Also should the defendant be found guilty, after he had been demoted he had to go to the Kings court for judgement7. Henry then removed its absolute right to excommunicate without his (or his representatives) approval, the right to replace a clerical position was now his and any disputes involving money, whether under oath or not were now to be taken to the royal court8. It is unsurprising that the Archbishop of the time, Thomas a Becket opposed these reforms as it weakened the authority of the church.

This opposition eventually led to his death in 1170. The Constitutions of Clarendon had the effect of making it clear that all classes of persons, even the clergy, were accountable to the 'central power', as Maitland called it. Even though Henry had to back down somewhat following the outcry surrounding Beckets death, he had made his intentions clear; he was going to have complete control over the law in his country. Since Anglo-Saxon times the monarch had been seen as 'protector of the realm'9 but this power had been delegated down through many levels such as the Court of the Shire and the Hundred.

It was this delegation that allowed for abuse of the system and ultimately dilution of the royal power. One of the main instigators behind Henrys reforms was a need to return this power to the Crown and to do so he needed to reduce the jurisdiction of the local courts. Two years on from the Constitutions of Clarendon came the Assize of Clarendon. In this Henry focused his attention on establishing a clear 'judicial procedure regarding crimes'10. It's most prominent and lasting achievement was the creation of a primitive jury system to deal with criminal cases, described in the assize as 'twelve more lawful men of the hundred'11.

The function of these juries was not to determine guilt on the basis of the facts like the juries of today. They were knights called upon to present an accusation of guilt not to actually try the defendant. The ultimate judgement in any case still rested with God. Anyone accused by the jury was to be put to the judgement of water. The accused would be bound and tossed into a body of water that had been blessed by a priest. If they floated they were guilty as they had been rejected by the water12. A problem was that anyone the jury believed was guilty was thrown into the water.

They either drowned, thus proving their innocence or floated and would probably have been hanged anyway or at least lost a hand or foot. There has been suggestion also that if someone was considered as having a particularly bad reputation and had been found with possible spoils of a crime then once accused they could be denied law completely and simply exiled without a trial. For a monarch who strove to extend fair and just law to everyone this would seem unfair, but it reflected Henrys zero tolerance attitude.

The juries of presentment were a small step towards the legal system that we know today. For the modern mind the word 'jury' evokes images of the determination of guilt through logical reasoning of the facts. To get to this situation the process has gone through many adaptations. It has evolved from simple accusers of guilt, to the trying of cases in the 13th C based on their own local knowledge. Finally it has become a highly respected legal institution concerned with the proof of guilt, determined by twelve strangers, solely on the basis of material evidence.

To offer defendants only the option of having trial by jury, in which their guilt or innocence was decided, at this time would have been to remove God from the equation, a move which would have been seen as ridiculous. This did not come about until the 13th C and even then only because the church itself withdrew from the process. It was made clear in the assize that this process would apply to everybody and that no-one could 'stay away on account of any immunity which he has or court or jurisdiction which he has held'13.

It is a clear example of the law being applied to all people at all levels. It is possible to see the bringing together of the heretofore regionally divided law under Clarendon. This King gave permission for the sheriff of one county to arrest any men that it was reported had committed a crime in another. This had the result that individual counties became responsible for law enforcement both within and without their own boundaries. Another duty given to the Sheriffs of each county, in an effort to curb the number of 'floating' vagrants, was the compilation of a list.

On this list they were to name all fugitives that had left their county and present it in writing to the justices. Then when the justices gave word that they were to visit a particular county, the resident sheriff would find out all those who had recently entered there and present them to the justices. These justices were ensconced around the country applying the Kings law, providing more certainty for people due to its relative uniformity than going to the local magnate. It has been said that the true start of the civil 'common law', was in 1176, along with the advent of the Assize of Northampton14 .

This introduced the assize of mort d' ancestor, allowing a much broader access to the Kings court, in relation to property, than the original writ of right. The writ of right was narrow; it was 'the implementation of a particular provision concerned with particular events'15. Now the jurisdiction over land and inheritance pleas moved from the lower feudal court to the king's court16. Another way of increasing the Crowns power at the expense of the magnate's authority in such matters17. It was also around this time that local lords lost the power of judgement in their courts.

Justices were promoted by the King to declarers of law rather than simply overseeing proceedings. Also a small specialist division, whose only function was to hear cases, began to emerge from Westminster. They heard cases twice a year either in situ or on 'circuit in eyre'18. The creation of this 'General Eyre', was a big step towards governing and controlling the country a piece at a time19. The jurisdiction was for all pleas thus further reducing the need for the magnate courts even further.

It travelled around the country bi-annually, giving the Kings justice to his subjects, ensuring that everyone had access to the same, equal law. The result of any dispute was no longer governed simply by the county you happened to live in. The reign of Henry II was clearly highly instrumental in laying the foundations for the latter common law system. Maitland's claim that 'the whole of English law is centralised and unified' may be a little premature, yet there is no doubt that this is where it began and grew from.

The most widely recognised form of justice today is the image of twelve individuals in the jury. Since the time of Henry this has changed to only have one function, the declarers of justice on the basis of fact only, rather than accusers. It is possible to follow the process which takes us from one to the other from the time of Henry II to the late 13th C, showing that he laid clear and malleable foundations. To us the jury is, (most of the time), seen as infallible as God would have seemed to medieval man.

As no form of guilt detection is 100 percent perfect we recognise it is the best method available to us at this time. The central issue to the question being asked is not the creation of the jury itself, but the fact that it applied to everyone in the sphere of criminal cases regardless of rank or status. Henry created a united legal system that delegated only to a chosen few rather than layers and layers of smaller feudal courts. Whilst this reduced the number of options open to people as regards where to take their disputes, it also gave them a narrower, fairer and more equal justice system.

Not only could this survive Henrys frequent and extended absences but it survived the reigns of many less effective monarchs to evolve and give us the legal system we have today. Even so it would be very short-sighted to claim even now that our system, as 'evolved' as it is, is wholly centralised and unified. There is always scope for improvement and change and in 900 years time law students may see our 'perfect' and 'modern' law system as archaic in the way that we view theirs. In this way it may be possible to say that Maitland's statement could never be truly accurate.