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Henry II and the Restoration of Order
Henry II and the Restoration of Order; Part 3

Henry II and the Restoration of Order; Part 3

One of the greatest marks of the disorder of Stephen's time had been the increase of feudal jurisdictions, the growth, that is to say, of barons' courts, in which the king's law was set aside by a baron's private regulations. In days when communication through the country was difficult and slow, there was always trouble in keeping the local courts connected with the central courts. It was to tighten this connection that sheriffs (royal officers) had been placed over the shire courts, while Henry I had sent round from the exchequer "travelling barons" who, first attending to matters of revenue, dealt also with matters of law. But while under King Stephen each did what was right in his own eyes, the connection between the central and local courts had almost perished. Henry II set himself to bring the local courts again under royal control. Unless the king's law ran through the length and breadth of the land, the king's power would be but a shadow.

The illegal baronial courts could easily be destroyed by the hand that was strong enough to pull down the illegal baronial castles. But something had to be put in their place: it is generally far easier to destroy than to construct. And the fact that Henry succeeded in his constructive measures does far more to prove him a great statesman than any of his purely destructive work. Instead of attempting to make anything new, Henry took hold of a Saxon institution and bent it to a new shape. As we have seen, Saxon justice had been accustomed to the idea of an association of men who represented their district, whether it was the shire or the hundred, either to give information on oath, or to do justice. Representatives of the "tunmoots" sat in the hundred courts; representatives of the hundred in the shire courts; Domesday Book itself had been based on the evidence collected from sworn representatives. And it was from this idea of representation that Henry developed the jury system.

The first step was the revival of his grandfather's plan of sending judges from the king's court to the local courts. These justices in eyre (An abbreviation of in itinere (on circuit)) still combined a care for the revenue with the task of bringing the king's justice home to all. But an important step forward was taken by the Assize of Clarendon in 1166, when it was ordered that these justices were to be met in each county by twelve legal men from the hundred, and four from the tunship, who were to " present" to them notorious malefactors. These persons did not indeed try the accused: they formed a jury "of presentment" (the origin of the modern "grand jury"), whose task it is to decide whether a man ought to be tried for any offence. The real trial was by the ordeal of water (The accused had to dip his hand into boiling water and take out a stone from the bottom of the vessel. The hand was then tied up for a time (usually seven days), and if, when the bandages were taken off, it was found to be healed, the man was held acquitted), and if the accused failed to get through that he was condemned. Yet even when he came off triumphant from the Ordeal, he was to leave the country within forty days. If the case against him was so strong that the sworn men "presented" him for trial, he was at any rate an undesirable person to keep in the country.

Chronology

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