HIS3406 Early English Constitutional History by Prof. Frederick Hok-ming Cheung

1. HIS3406 Early English Constitutional Historyby Prof. Frederick Hok-ming Cheung

2. Medieval English History (II: Henry II, 1054-1189) King Henry II, r. 1154-1189, reigned for 35 years [the same as his grandfather: Henry I, r. 1100-1135](The best study of Henry II and his reign is W.L. Warren, Henry II (Berkeley: University of California Press, 1973). According to Prof. Hollister, �The two reigns are similar in other respects as well, for Henry II undertook quite deliberately to revive Henry I�s policies and to rule in his imperious tradition. Yet the new king was a vibrant personality in his own right. He has been aptly described as �a man of intense, mercurial temperament who could shift in a moment from sunshine to thunder� [Christopher Brooke, The World of John of Salisbury, (Oxford: Oxford U. Press, 1984), p. 17].

3. His contemporaries regarded him as a fear-inspiring, peacekeeping monarch � impulsive, explosive, always on the move, and overwhelming in personality. �� Henry was almost perversely energetic. At the end of a hard day he would refuse to sit down, before or after dinner. His courtiers, so as not to risk offending him, had to stand as well. �� The scholar Peter of Blois, who spent some time at Henry�s court, described it as a scene of chaotic confusion. Henry I [the grandfather] had planned his itineraries carefully, but Henry II�s movements through the countryside seemed to depend only on the royal whim. ��

4. But �� Henry [II] knew where he was going, even if his followers did not. (Hollister, The Making of England, pp. 179-180) (For military and financial reforms under Henry II, please see Hollister, The Making of England, pp. 181-183.)

5. King Henry II, r. 1154-1189, Father of the English Common Law Hudson, John. The Formation of the English Common Law: Law and Society in England from the Norman Conquest to Magna Carta. (London: Longman, 1996). Brand, Paul. The Making of the Common Law. (London, 1992). + Warren�s Henry II and Hollister�s The Making of England.

6. Henry I, r.1100-1135 Stephen, r. 1135-1154 (civil war with Matilda) Henry II, r. 1154-1189

7. King Henry II and his advisers adopted a variety of ways to handle the legal cases that poured into his royal court when he ascended the English throne in 1154 (as in the 1153 Treaty of Winchester, he had promised to restore the inheritances of all those who had lost their lands during Stephen�s reign [1135-1154]). When a case involved some very important people, such as great magnates or espicopal (bishops/archbishops) [such as the trial of Archbishop Thomas Becket in 1164 at Northampton], Henry II would summon a great council of magnates and curiales to hear and determine the case.

8. Pleas involving minor cases were usually heard by a group of administrative officers and royal courtiers. Of course, King Henry II and his courtiers could only hear a few cases. So, by the 1160s, the exchequer court [mainly in Westminster] had begun to hear legal cases. By the 1170s, a group of legal professionals had emerged around the exchequer court, and these people specialized in hearing judicial cases. According to Prof. Hollister, �This group would evolve, during the 1190s, into the Court of Common Bench, a judicial tribunal entirely separate from the exchequer.

9. Henry also took steps to extend the reach of royal justice into the countryside. �� beginning in 1176, Henry began a nationwide series of general eyres, in which teams of royal justices toured the countryside to hear judicial cases. Henry I [the grandfather] had also sent royal justices �on eyre� [also known as �itinerant justiciars�] through the countryside. �... Under Henry II, however, the royal justices �on eyre� took over the shire court, turning the shire court into an extension of the king�s own court and judging cases according to the common custom of the king�s courts. The customs by which the king�s justice rendered their decisions were recorded late in Henry II�s reign in a famous law book ascribed [wrongly] to Henry�s chief justice, Ranulf de Glanville.

10. �Glanville�s� treatise is practical and utilitarian rather than philosophical � by and large it is a manual explaining the nature and uses of the judicial writs for sale at the royal chancery. But the work is nevertheless a major intellectual landmark in the rise of a coherent body of written royal law, which its author did not hesitate to compare with the Corpus Juris Civilis, the great collection of Roman law compiled by the sixth-century emperor Justinian. With �Glanville�s� famous Treatise on the Laws and Customs of England, the history of English common law really begins.

11. [*The best edition, with facing page Latin text and English translation, is The Treatise on the Laws and Customs of England Commonly called Glanville, ed. G.D.G. Hall, 2nd ed. (Oxford, 1993), with a new introduction by Michael Clanchy.]. �� Henry II was determined to reassert his authority over the sheriffs and, above all, to prevent the supposedly royal office of sheriff from passing from father to son as an inheritable right. In 1170, he ordered a thoroughgoing inquiry into the activities of all the sheriffs and then replaced most of them with men more directly dependent upon the king. The king�s authority hinged on his ability to control his sheriffs, for it was they who collected royal demesne revenues and accounted for them at the exchequer. ��

12. Yet even with the active itinerant justices and effective, trustworthy sheriffs, Henry II still faced the formidable problem of maintaining local law and order without a police force. In his Assize of Clarendon of 1166, augmented by the Assize of Northampton of 1176, he ordered the inquest juries of four men from every town and twelve men from every hundred to meet periodically to report the names of notorious local criminals to the sheriff or itinerant justices. The accused criminals were then forced to submit to trial by ordeal. �� The juries required by the assize were closer in spirit to our grand juries: they were indictment juries, whose function was to supply

13. information to the justices, who would determine whether there was a case for the accused to answer. �� The Assizes of Clarendon and Northampton made juries an integral part of royal procedures in both criminal and civil cases. By so doing, these assizes marked a significant advance of royal jurisdiction into areas traditionally reserved for the courts of hundred and shire. �� It was Henry II who, for the first time, systematically applied the particular customs of the king�s own court to the adjudication of land disputes that did not involve the king�s tenants-in-chief. The most important of Henry II�s new measures with respect to land law was the Assize of Novel Disseisin, first pronounced in 1166 as part of the Assize of Clarendon. Novel disseisin means

14. �recent ejection.� As its name implies, the measure was intended to provide a speedy legal remedy for anyone who had been wrongfully and recently dispossessed of an estate. The writ ordered the sheriff to assemble a jury of local knights and freemen and to ask them a simple question: had the claimant bringing the writ been ejected from his or her free tenement recently, unjustly, and without the judgment of a proper court? If the jury�s answer was �Yes,� then the claimant was restored to the property, and the person who had committed the ejection paid a fine to the king. If the answer was �No,� then the claimant paid a fine to the king for bringing a false claimant. ��

15. Another of Henry�s new measures, the writ of Mort d�Ancestor (�the death of an ancestor�), offered speedy help to persons claiming heritable property. Once again, the writ asked a few simple questions of a local jury: did the claimant�s relative hold the land on the day he or she died? And was the claimant a closer heir to his relative than was the current occupant of the property? If the jury�s answered �Yes� to both questions, then the sheriff would eject the current occupant and put the claimant in possession of the property. �� Novel Disseisin and Mort d�Ancestor cases could usually be resolved within weeks or months. ��

16. Henry II�s legal reforms had the ultimate effect of making the royal courts the chief adjudicators of land quarrels of all kinds. Criminal law too was increasingly becoming a matter for the king�s own court. Longstanding regional peculiarities in legal custom were giving way to a uniform royal law, a common law shared by all the free subjects of England.

17. The legal system would continue to evolve; the pace of change was at least as rapid between 1189 and 1236 as it had been between 1154 and 1189. And clearly Henry II�s reforms owed much to the precedents already established by his grandfather, King Henry I. But it was Henry II and his advisers who gave shape to this new legal system and who created and extend it.

18. Historians continue to debate the point, but it seems to us that Henry II deserves his traditional reputation as the father of the English common law.� (Hollister, The Making of England, pp. 183-188).

19. According to W.L. Warren, �Much of the English common law was to be judge-made law, and it owed its origin to that combination of royal authority and a sensible if circumscribed discretionary power which the royal justices carried with them from Henry II�s day. �� That the development of the English common law owed much to the royal justices is abundantly in evidence; that it also owed much to Henry II personally, though less surely warranted, can hardly be put in doubt.

20. The �leap forward�, as Doris Stenton has called it, derived its impetus from his will. The assize of disseisin and the decision to take more than a financial interest in the administration of criminal justice, emerged from his close attention to English affairs in 1163-6. �� The great lawyer of the thirteenth century, Henry de Bracton, recorded a tradition that Henry II and his advisers spent sleepless nights �excogitating and devising� the writ of novel disseisin.

21. The tradition echoed the words of a contemporary, Walter Map, who wrote that Henry II was �a subtle deviser of novel judicial processes�. �� It is no mere fancy to see the court at Westminster as a reflection of his personality: busy and decisive, yet always ready to listen to arguments, and adept at finding solutions to awkward problems. With Henry II�s household, as with the central court, it was �school every day and the discussion of questiones�.

22. The reign of Henry II was, as F.W. Maitland, the most renowned of legal historians, has said, �a critical moment in English legal history�. The customary law was no longer adequate for the needs of a changing society, and the revived study of Roman Civil Law had made men aware of the possibilities of rational jurisprudence. �� Henry II chose instead to take English customary law, trim it, knead it, reshape it, and give it the transforming touch of genius. Henry II and his advisers may appear,

23. superficially, to have been merely supplementing existing legal processes; but in fact they were erecting the basic framework of a structure capable of continuous expansion and adaptation. It was this capacity for adaptation and change which distinguished the new common law from the old customary law. (Warren, Henry II, pp. 358-361).