After centuries of law being kept by custom and tradition, the common law of England evolved and became something new. The influences on these customs and traditions were many, from the Romans to the Vikings and then the Normans, and what was law in one place was not necessarily law in another. But the era of legal reform that began in 1066 reflected the English desire to impose order on their world, to categorize and regulate what they could, including law. Following the Battle of Hastings and the Norman Conquest, English law began to evolve into what would eventually become common law. King Henry II actively tried to emulate his grandfather, Henry I, and when he took over as king he gained a kingdom with a confusing system of courts and laws. There was the Royal Court, the exchequer courts, the local (shire) courts, courts for the hundred, that divided the shires into smaller geographic units, the courts of the barons and the courts of the Church. Needless to say, jurisdiction could be a problem and the application of the existing laws was uneven at best.
The basis for the system was that the king was the ultimate owner of the land, only through his consent could someone own land. As the king made grants to his barons, they in turn granted land to their vassals. These transactions carried certain legal obligations for both parties, and private courts sprang up to mediate disputes. The baron’s courts decided issues between the vassals, but at the lower level of the manor, manorial courts were held to decide suits between the manor’s serfs. The shire and hundred courts dealt with public matters.
Some laws were written down, but many were simply based on custom or tradition that had been passed down for generations. Henry II faced a dire need to streamline this maze of courts and laws to not only bring even-handed justice across the realm, but also to clarify the legal standing of all citizens. Convening a series of assizes, or meetings with his nobles that published binding edicts, Henry and his advisers revised the court system, standardized and clarified the law, and made courts and law enforcement officials more accountable to the king.
Perhaps Henry’s most pressing problem was a huge backlog of cases needing the attention of the Royal Court. This could be a tricky business. The king’s friends naturally expected partiality in front of the Royal Court, otherwise, what was the point of being the king’s friend? However, it was bad business to make things look too unfair or pre-determined. Such cases could be heard by any number of officials around the king, since he personally could not spend too much time on legal matters. When trying major cases, however, such as Archbishop Thomas Beckett in 1164, not only would this demand the personal attention of the king, but from the king’s standpoint it was a good idea to spread the potential blame in case of repercussions. Therefore, he would ordain a panel of advisors from among his nobles, to show that he wasn’t making rash or arbitrary decisions.
Finances were a continuing need of any government and the exchequer court was created to audit and deal with the sheriffs and their collections of monies due the King. Into the 1160’s the court was beginning to hear cases. As time went on a class of professional officials emerged to do nothing but try these various cases; what had been a sometimes chaotic process became more streamlined and codified. In the 1190’s this trend would result in the Court of Common Bench, a completely separate judicial tribunal.
Late in Henry’s reign the landmark legal book ascribed to Ranulf de Glanville, “Treatise on the Laws and Customs of England,” was published. This was a nuts and bolts book that nevertheless is seen as where the history of English common law starts. It was written specifically to list all of the various writs that were available at the Royal court, what they cost, and to bring that uniform code of justice to all the land equally. For cases not before the Royal Court, beginning in 1176 Henry began a series of general eyres, where teams of royal officials would tour the land hearing cases, thus bringing royal justice to everyone, at least in theory.
One of the more important reforms concerned the Sheriffs, on whom the king was heavily dependent for the collection of taxes and to preside over the shire courts. Under the anarchy of Stephen’s reign, the office of Sheriff had become nearly a hereditary position. This meant that not only were the men in this crucial office not necessarily loyal to the king, but that justice may not be administered according to the king’s wishes. After a thorough investigation ordered in 1170, Henry wound up replacing most of the sheriffs with men more loyal to the crown.
With no police force as such, Henry made systematic use of the jury system that had been around since the days of the Anglo-Saxons. The juries consisted of four men from every town and twelve men from every hundred. They would meet periodically to discuss criminal cases. Juries did not determine guilt or innocence but instead functioned more as a modern grand jury might. Assemblies of men would gather to report the name of local criminals to the sheriffs or to the traveling judges. The accused could then be tried. The decision of guilt or innocence was left up to the ordeal system, not the jury; their job was to accuse and inform. The Assizes of Clarendon and Northampton lifted juries from sometimes affairs and made them integral to the Royal Court procedures for both civil and criminal cases. These assizes broadened royal jurisdiction to include the shire and hundred courts, a major advance of royal judicial power. Specifically, the Assize of Clarendon directed a jury be formed to investigate crimes, while the Assize of Northampton said that juries should decide which cases would be brought to trial. Other legal concepts developed during Henry’s reign that have endured in some form until today include the Novel Disseisin. First written into the Assize of Clarendon and meaning ‘recent ejection’, this gave a legal remedy to anyone who claimed to have been wrongly and recently evicted from an estate. The Writ of Mort d’Ancestor (the death of an ancestor) gave people who claimed inheritance rights a means of enforcing them.
In the matter of land disputes, a massive issue in the 12th century, Henry II had such disputes removed from their traditional court of decision, the private baronial court, and into the Royal Court system, where uniformity of law could be upheld. This did not completely close down the baronial courts, and the power that went with them, but it curbed them greatly.
After Henry’s death, Richard I spent most of his time out of the country, reigning for only ten years. The ascension to the throne of King John brought a crisis to the development of English common law, as John had none of the reformer in him. But from great crisis often comes great change, and so it did with John. The reign of King John, whether better or as bad as history has made him out to be, lead to another step in what was becoming a march toward English Common Law, namely, the Magna Carta. When King John had taxed his kingdom nearly into oblivion, abused his nobles and challenged the pope, fought France and lost at everything he had ever tried, many of his supporters decided that enough was enough. The Magna Carta was a list of laws and regulations, promises and restrictions, which both the king and his subjects agreed to live by. Not trusting King John to keep his word, twenty-five barons were assigned the task of watching to make sure he upheld the Charter. At the time of its writing and in the months and years shortly thereafter, it was a colossal failure. John repudiated it almost immediately. But the document did not die. Magna Carta’s greatest feature, the one that allowed it to live on long after its specific tenets were obsolete, was because “it was adaptable. This was its greatest and most important characteristic” (Hollister, Stacey & Stacey, page 211). Its specifics might have lost their validity, but not its overall concept. Over-taxed and under-appreciated free men revolted against an abusive and unjust king, just as they did many other times in history, including Colonial America in 1776. The Great Charter, or Magna Carta, was revised and repudiated several times until a final version was issued in 1225. From that point forward the charter was law, becoming the very first English statute. The English now had something they could refer to, a form of constitution, a written guarantee of their relationship with the king. And aside from the importance of their existence in assuring people of their rights, the ideas in Magna Carta and the Assize of Clarendon both gave future reformers a place to start, a basis from which to further codify the rights of the people. Whether or not this or that king paid attention to those ideas, the spirit of the documents lived on.
Of special importance to posterity was Article 39 of Magna Carta, which stated that a free man would have legal recourse in the future according to the law; he was protected from being “…taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.” From that point forward free Englishmen would have their disputes settled according to the law, not the vagaries of a king or a judge.
The ultimate effect of these cumulative reforms was to make the royal courts the chief judges of land disputes of all types, and made criminal law largely a royal concern as well. Law was becoming more uniform. Instead of things being one way in a Shire A and a different way in Shire B, a common law was emerging that applied to all Englishmen.