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Henry II and the Restoration of Order
Henry II and the Restoration of Order; Part 4

Henry II and the Restoration of Order; Part 4

This use of a jury, as laid down in the Assize of Clarendon, and repeated in the Assize of Northampton (1176), applied only to criminal matters. But in civil cases too a jury might be employed, though only as an alternative. The other choice, however, was the Norman scheme of "trial by battle", and among the lower people this was disliked, not only because it was un-English (for it was not a native institution), but because it gave an overwhelming advantage to the man best trained in arms, and so was hideously unfair. In the eyes of men of simple faith "thrice is he armed who hath his quarrel just"; but such simplicity of faith was rare, for the very good reason that its belief so often led to the wrong man winning the day. If all that justice can do is to declare that "might is right", then justice may as well stand aside altogether, for the same end will be reached without its meddling. As a substitute for this barbarous plan, the system of settling civil cases by a jury, cumbrous and expensive as it was at first, since it involved taking the case to the King's Court at Westminster, proved to be the beginning of a valuable reform.

The conclusion of the matter lies outside the reign of Henry II; but as he was the father of the English jury, it is well to join with his name the perfecting of the work he began. From admitting that after all Might was not Right, it was but a short step to agree that Chance was not Justice. Trial by battle fell into disuse, and soon afterwards trial by Ordeal followed it. In 1216 the Church forbade the further use of Ordeal, and in its place came the "petty jury", a body of twelve men drawn from the neighbourhood, who were to deliver a verdict (i.e. a "true saying'') on the charge before them. At first they were chosen for their presumed knowledge of the accused's crime; and if they could not agree, others were added till twelve were found of one mind. It was only by slow degrees that the functions of witness and juryman were kept apart; and for a long time the accused could not call witnesses for himself, or have anyone to defend him, since the jury, being themselves witnesses, were supposed to know all there was to be known without outside assistance: but, imperfect as the jury was in its beginnings, it grew till it became one of the greatest safeguards of English liberty.

Hitherto we have seen nothing but Henry's triumphs: we have seen him strike down disorder as personified by the barons; we have seen him strengthen and widen the royal justice till it became so formidable that the proudest noble dared not defy it, and so far-reaching that the meanest freeman could be sure of its protection. But there was yet one body over which the royal justice had no authority. It is Henry's attempt to enforce his authority over the Church that must next occupy us.

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