The task of preserving order in the medieval state was in the main the task of repressing and punishing crimes of violence. Murder and assault, robbery and burglary, fill the earliest court records, and on the civil side a large proportion of the cases, like those under the assizes of Mort d'Ancestor and Novel Disseisin, concerned attacks on property not very different in character. The problem of the ruler in this department of government was so to perfect the judicial machinery and procedure as to protect peaceable citizens from bodily harm and property from violent entry and from fraud closely akin to violence. An additional and immediate incentive to the improvement of the judicial system arose from the income which was derived from fines and confiscations, both heavier and more common punishments for crime than in the modern state. It would be unfair to a king like Henry II, however, to convey the impression that an increase of income was the only, or indeed the main, thing sought in the reform of the courts. Order and security for land and people were always in his mind to be sought for themselves, as a chief part of the duty of a king, and certainly this was the case with his ministers who must have had more to do than he with the determining and perfecting of details.
This is not the place to describe the judicial reforms of the reign in technical minuteness or from the point of view of the student of constitutional history. The activity of a great king, the effect on people and government are the subjects of interest here. The series of formal documents in which Henry's reforming efforts are embodied opens with the Constitutions of Clarendon in 1164. Of the king's purpose in this—not new legislation, but an effort to bring the clergy under responsibility to the state for their criminal acts according to the ancient practice,—and of its results, we have already had the story. The second in the series, the Assize of Clarendon, the first that concerns the civil judicial system, though we have good reason to suspect that it was not actually Henry's first attempt at reform, dates from early in the year 1166. It dealt with the detection and punishment of crime, and greatly improved the means at the command of the state for these purposes. In 1170, to check the independence of the sheriffs and their abuse of power for private ends, of which there were loud complaints, he ordered strict inquiry to be made, by barons appointed for the purpose, into the conduct of the sheriffs and the abuses complained of, and removed a large number of them, appointing others less subject to the temptations which the local magnate was not likely to resist. This was a blow at the hold of the feudal baronage on the office, and a step in its transformation into a subordinate executive office, which was rapidly going on during the reign. In 1176, in the Assize of Northampton, the provisions of the Assize of Clarendon for the enforcement of criminal justice were made more severe, and new enactments were added. In 1181 the Assize of Arms made it compulsory on knights and freemen alike to keep in their possession weapons proportionate to their income for the defence of king and realm. In 1184 the Assize of the Forest enforced the vexatious forest law and decreed severe penalties for its violation. In the year before the king's death, in 1188, the Ordinance of the Saladin Tithe regulated the collection of this new tax intended to pay the expenses of Henry's proposed crusade.
This list of the formal documents in which Henry's reforms were proclaimed is evidence of no slight activity, but it gives, nevertheless, a very imperfect idea of his work as a whole. That was nothing less than to start the judicial organization of the state along the lines it has ever since followed. He did this by going forward with beginnings already made and by opening to general and regular use institutions which, so far as we know, had up to this time been only occasionally employed in special cases. The changes which the reign made in the judicial system may be grouped under two heads: the further differentiation and more definite organization of the curia regis and the introduction of the jury in its undeveloped form into the regular procedure of the courts both in civil and criminal cases.
Under the reign of the first Henry we noticed the twofold form of the king's court, the great curia regis, formed by the barons of the whole kingdom and the smaller in practically permanent session, and the latter also acting as a special court for financial cases—the exchequer. Now we have the second Henry establishing, in 1178, what we may call another small curia regis—apparently of a more professional character—to be in permanent session for the trial of cases. The process of differentiation, beginning in finding a way for the better doing of financial business, now goes a step further, though to the men of that time—if they had thought about it at all—it would have seemed a classification of business, not a dividing up of the king's court. The great curia regis, the exchequer, and the permanent trial court, usually meeting at Westminster, were all the same king's court; but a step had really been taken toward a specialized judicial system and an official body of judges.
In the reign of Henry I we also noticed evidence which proved the occasional, and led us to suspect the somewhat regular employment of itinerant justices. This institution was put into definite and permanent form by his grandson. The kingdom was at first divided into six circuits, to each of which three justices were sent. Afterwards the number of justices was reduced. These justices, though not all members of the small court at Westminster, were all, it is likely, familiar with its work, and to each circuit at least one justice of the Westminster court was probably always assigned. What they carried into each county of the kingdom as they went the round of their districts was not a new court and not a local court; it was the curia regis itself, and that too in its administrative as well as in its judicial functions indeed it is easy to suspect that it was quite as much the administrative side of its work,—the desire to check the abuses of the sheriffs by investigation on the spot, and to improve the collection of money due to the crown, as its judicial,—as the wish to render the operation of the law more convenient by trying cases in the communities where they arose, that led to the development of this side of the judicial system. Whatever led to it, this is what had begun, a new branch of the judicial organization.
It was in these courts, these king's courts,—the trial court at Westminster and the court of the itinerant justices in the different counties,—that the institution began to be put into regular use that has become so characteristic a distinction of the Anglo-Saxon judicial system—the jury. The history of the jury cannot here be told. It is sufficient to say that it existed in the Frankish empire of the early ninth century in a form apparently as highly developed as in the Norman kingdom of the early twelfth. From Charles the Great to Henry II it remained in what was practically a stationary condition. It was only on English soil, and after the impulse given to it by the broader uses in which it was now employed that it began the marvellous development from which our liberty has gained so much. At the beginning it was a process belonging to the sovereign and used solely for his business, or employed for the business of others only by his permission in the special case. What Henry seems to have done was to generalize this use, to establish certain classes of cases in which it might always be employed by his subjects, but in his courts only. In essence it was a process for getting local knowledge to bear on a doubtful question of fact of interest to the government. Ought A to pay a certain tax? The question is usually to be settled by answering another: Have his ancestors before him paid it, or the land which he now holds? The memory of the neighbours can probably determine this, and a certain number of the men likely to know are summoned before the officer representing the king, put on oath, and required to say what they know about it.
In its beginning that is all the jury was. But it was a process of easy application to other questions than those which interested the king. The question of fact that arose in a suit at law—was the land in dispute between A and B actually held by the ancestor of B?—could be settled in the same way by the memory of the neighbours, and in a way much more satisfactory to the party whose cause was just than by an appeal to the judgment of heaven in the wager of battle. If the king would allow the private man the use of this process, he was willing to pay for the privilege. Such privilege had been granted since the Conquest in particular cases. A tendency at least in Normandy had existed before Henry II to render it more regular. This tendency Henry followed in granting the use of the primitive jury generally to his subjects in certain classes of cases, to defendants in the Great Assize to protect their freehold, to plaintiffs in the three assizes of Mort d'Ancestor, Novel Disseisin, and Darrein Presentment to protect their threatened seisin. As a process of his own, as a means of preserving order, he again broadened its use in another way in the Assize of Clarendon, finding in it a method of bringing local knowledge to the assistance of the government in the detection of crime, the function of the modern grand jury and its origin as an institution.
The result of Henry's activities in this direction—changes we may call them, but hardly innovations, following as they do earlier precedents and lying directly in line with the less conscious tendencies of his predecessors,—this work of Henry's was nothing less than to create our judicial system and to determine the character and direction of its growth to the present day. In the beginning of these three things, of a specialized and official court system, of a national judiciary bringing its influence to bear on every part of the land, and of a most effective process for introducing local knowledge into the trial of cases, Henry had accomplished great results, and the only ones that he directly sought. But two others plainly seen after the lapse of time are of quite equal importance. One of these was the growth at an early date of a national common law.
Almost the only source of medieval law before the fourteenth century was custom, and the strong tendency of customary law was to break into local fragments, each differing in more or less important points from the rest. Beaumanoir in the thirteenth century laments the fact that every castellany in France had a differing law of its own, and Glanville still earlier makes a similar complaint of England. But the day was rapidly approaching in both lands when the rise of national consciousness under settled governments, and especially the growth of a broader and more active commerce, was to create a strong demand for a uniform national law. What influences affected the forming constitutions of the states of Europe because this demand had to be met by recourse to the imperial law of Rome, the law of a highly centralized absolutism, cannot here be recounted. From these influences, whether large or small, from the necessity of seeking uniformity in any ready-made foreign law, England was saved by the consequences of Henry's action. The king's court rapidly created a body of clear, consistent, and formulated law. The itinerant justice as he went from county to county carried with him this law and made it the law of the entire nation. From these beginnings arose the common law, the product of as high an order of political genius as the constitution itself, and now the law of wider areas and of more millions of men than ever obeyed the law of Rome.
One technical work, at once product and monument of the legal activity of this generation, deserves to be remembered in this connexion, the Treatise on the Laws of England. Ascribed with some probability to Ranulf Glanvill, Henry's chief justiciar during his last years, it was certainly written by some one thoroughly familiar with the law of the time and closely in touch with its enforcement in the king's court. To us it declares what that law was at the opening of its far-reaching history, and in its definiteness and certainty as well as in its arrangement it reveals the great progress that had been made since the law books of the reign of Henry I. That progress continued so rapid that within a hundred years Glanvill's book had become obsolete, but by that time it had been succeeded by others in the long series of great books on our common law. Nor ought we perhaps entirely to overlook another book, as interesting in its way, the Dialogue of the Exchequer. Written probably by Richard Fitz Neal, of the third generation of that great administration family founded by Roger of Salisbury and restored to office by Henry II, the book gives us a view from within of the financial organization of the reign as enlightening as is Glanvill's treatise on the common law.