[1] Scutage: see S161. The demand for scutage seems to show that the feudal tenure was now fully organized, and that the whole realm was by this time divided into knights' fees,—that is, into portions of land yielding 20 pounds annually,—each of which was obliged to furnish one fully armed, well-mounted knight to serve the King (if called on) for forty days annually. [2] National militia: see SS96, 140.
But in getting the military control of the kingdom Henry had won only half of the victory he was seeking; to complete his supremacy over the powerful nobles, the King must obtain control of the administration of justice.
In order to do this more effectually, Henry issued the Assize of Clarendon (1166). It was the first true national code of law ever put forth by an English king, since previous codes had been little more than summaries of old "customs." The realm had already been divided into six circuits, having three judges for each circuit. The Assize of Clarendon gave these judges power not only to enter and preside over every county court, but also over every court held by a baron on his manor. This put a pretty decisive check to the hitherto uncontrolled baronial system of justice—or injustice—with its private dungeons and its private gibbets. It brought everything under the eye of the King's judges, so that those who wished to appeal to them could now do so without the expense, trouble, and danger of a journey to the royal palace.
Again, it had been the practice among the Norman barons to settle disputes about land by the barbarous method of Trial by Battle (S148); Henry gave tenants the right to have the case decided by a body of twelve knights acquainted with the facts.
In criminal cases a great change was likewise effected. Henceforth twelve men from each hundred, with four from each township,—sixteen at least,—acting as a grand jury, were to present all suspected criminals to the circuit judges.[3] The judges sent them to the Ordeal (S91); if they failed to pass it, they were then punished by law as convicted felons; if they did pass it, they were banished from the kingdom as persons of evil repute. After the abolition of the Ordeal (1215), a petty jury of witnesses was allowed to testify in favor of the accused, and clear them if they could from the charges brought by the grand jury. If their testimony was not decisive, more witnesses were added until twelve were obtained who could unanimously decide one way or the other. In the course of time[1] this smaller body became judges of the evidence for or against the accused, and thus the modern system of Trial by Jury was established about 1350.
[3] See the Assize of Clarendon (1166) in Stubbs's "Select Charters." [1] The date usually given is 1350; but as late as the reign of George I juries were accustomed to bring in verdicts determined partly by their own personal knowledge of the facts. See Taswell-Langmead (revised edition), p.179.
These reforms had three important results: (1) they greatly dimished the power of the barons by taking the administration of justice, in large measure, out of their hands; (2) they established a more uniform system of law; (3) they brought large sums of money, in the way of court fees and fines, into the King's treasury, and so made him stronger than ever.
But meanwhile Henry was carrying on a still sharper battle in his attempt to bring the Church courts—which William I had separated from the ordinary courts—under control of the same system of justice. In these Church courts any person claiming to belong to the clergy had a right to be tried. Such courts had no power to inflict death, even for murder. In Stephen's reign many notorious criminals had managed to get themselves enrolled among the clergy, and had thus escaped the hanging they deserved. Henry was determined to have all men—in the circle of clergy or out of it—stand equal before the law. Instead of two kinds of justice, he would have but one; this would not only secure a still higher uniformity of law, but it would sweep into the King's treasury may fat fees and fines which the Church courts were then getting for themselves.
By the laws entitled the "Constitutions of Clarendon," 1164 (S165), the common courts were empowered to decide whether a man claiming to belong to the clergy should be tried by the Church courts or not. If they granted him the privilege of a Church-court trial, they kept a sharp watch on the progress of the case; if the accused was convicted, he must then be handed over to the judges of the ordinary courts, and they took especial pains to convince him of the Bible truth, that "the way of the transgressor is hard." For a time the Constitutions were rigidly enforced, but in the end Henry was forced to renounce them. Later, however, the principle he had endeavored to set up was fully established.[2]
[2] Edward I limited the jurisdiction of the Church courts to purely spiritual cases, such as heresy and the like; but the work which he, following the example of Henry II, had undertaken was not fully accomplished until the fifteenth century.