A History of England, Period I. Mediæval Monarchy

by J. Franck Bright

Origin of jury.

Henry’s legal mind, which thus organized the administration, introduced many improvements In judicial procedure. It is to this reign that can be traced the origin of trial by jury. This method was not employed first in criminal cases, but in carrying out inquiries of various kinds. As soon as such inquiries came to be made on oath, the beginning of the jury system had arrived. As early as the great Domesday survey, the sheriff, barons, freeholders, the priest, the reeve, and six villeins of each township, had been all examined upon oath. Judicially this method of inquiry was first applied in civil cases. By the ordinance of the Grand Assize, a choice was given to any person whose right to the possession of land was called in question. He might either if he pleased defend his claims by the old-fashioned appeal to battle, or he might have his right examined by twelve freeholders on their oath, selected by four freeholders also on their oath, nominated by the sheriff. These sworn freeholders were evidently at first witnesses; twelve others were subsequently added to them, who, from their neighbourhood or other reasons, might be supposed to be better acquainted with the facts. This took place in Edward I.’s reign. The double jury was then separated, the original twelve playing their part as jurors of the present day, judging of the facts asserted by the second twelve, who represent the witnesses. In 1166, by the Assize of Clarendon, the same process was extended to criminal cases; that is to say, twelve lawful men from each hundred, and four from each township, were sworn to inquire whether there were any criminal, or receiver of criminals, in their district, and to present the same to the itinerant justices or to the sheriffs. These criminals were then put to the ordeal without further investigation. This was the origin of the grand jury. The abolition of ordeal rendered some substitute necessary, and ordinary trial by jury was the consequence.

Scutage.

Assize of arms.

The Assize of Northampton in 1176 was, as has been said, a repetition in stronger terms of the Assize of Clarendon. It is moreover interesting, as giving a notion of the duties of the itinerant justices, who on this occasion were six in number. Not only was the examination of crimes in their hands, but they had to arrange the law with regard to tenure of land, reliefs of heirs, dowers of widows, and other such matters, and to exact fealty from all classes of the commonwealth, and to see to the complete destruction of private castles, and the secure guardianship of those of the crown. These latter points were probably rendered necessary by the Rebellion of 1174. The same feeling of mistrust of his feudal barons which dictated these precautions was the cause of two other measures of this reign. The military service of the tenants in chief was changed into a money payment called scutage. This money enabled the King to hire men for his foreign wars, and to dispense with the service of his barons; while, by the Assize of Arms in 1181, the national militia of England, the old fyrd of the Saxons, to follow which was one of the duties of the trinoda necessitas, was reorganized, and the arms required of each class in the country carefully defined.

Henry’s importance in Europe.

Closing troubles with his sons and France.

At the same time that Henry was thus organizing his authority in England, his position in Europe was a great one. Two of his sons were married or betrothed to daughters of the King of France. Of his three daughters, the eldest was the wife of Henry the Lion of Saxony, the rival of Frederick Barbarossa; the second, Eleanor, was Queen of Castile; the third, Joanna, though still a child, was taken to Sicily as the bride of the Norman king of that country, which at this time was the dominant power of the Mediterranean. His importance indeed was such that he seemed of all the kings in Europe most firmly seated on his throne, and was selected on account of his power and character, as well as for family reasons, as arbitrator between Alphonso of Castile and his uncle Sancho of Navarre, and as the strongest ally to whom Henry the Lion could have recourse when he was stripped of his German possessions. This befell him in consequence of his desertion of Frederick Barbarossa before his invasion of Lombardy, which terminated in the great battle of Legnano. But in the midst of his greatness there were two dangers constantly besetting Henry; on the one hand was the King of France, on the other were his own children. Not only did the great power of a feudatory naturally excite the French King’s jealousy, Henry had pursued a crooked policy with regard to the marriage of his sons; he had refused to surrender to Louis the Vexin and Bourges as he had promised to do upon their marriages. There was thus a constant opportunity for quarrel. On the other hand, with regard to his sons, his measures had been still more unfortunate. Anxious to secure his succession, and conscious probably that his kingdom was too large to be held by one hand, he had caused his eldest son to be crowned, thus exciting the envy of his brothers; while, at the same time, he had given them large duchies, which rendered them nearly independent of him. In addition to this, his dislike for his wife had rendered her a constant enemy, while his foolish affection for his youngest son John gave still further cause of offence. When therefore, as was likely to happen, any of his sons determined to oppose him, they were certain of assistance from France, and of bad advice from their mother.

First war; against young Henry. 1183.

It is difficult to arrange the constant brief wars which characterized the close of his reign, complicated as they are by the rising interests in the affairs of the East, which were gradually bringing on the third Crusade. They may perhaps be divided into four; the first extending to the death of young Henry; the second to the death of Geoffrey of Brittany; the third from 1184 to a peace negotiated in the interests of the crusades in 1188; and the last, the quarrel with Richard and John, which terminated with the King’s death. The first of these broke out in 1183. Richard had entered with zest into the wild feudal life of Poitou and Aquitaine, and had been very successful there. He had even pushed his arms to Bayonne, in the territories of the Basques, and to the borders of Navarre. This had aroused the envy of his elder brother. This young prince, who regarded himself, and was regarded by many, as the flower of knighthood, was capable of any amount of hypocrisy and double dealing, and seems to have so far cajoled his father as to persuade him to demand from his younger brothers homage to the elder. This Richard positively refused to give. But his arbitrary rule in Poitou and Aquitaine had made him many enemies, at the head of whom was the wild intriguing noble, at once warrior and troubadour, Bertram de Born. With these young Henry allied himself, and, with the aid of his brother from Brittany, pressed so heavily upon Richard, that the old king had to come to his assistance. At this crisis the young king caught a fever and died, forgiven but unvisited by his father. The King took advantage of his son’s death to pursue his success, and succeeded in subjugating the refractory barons, and re-establishing peace. Conscious that the young King Philip II. of France, who had succeeded to the throne in 1180, and over whom he had once had much influence, had been mixed in his son’s rebellion, Henry tried to make peace with him too. Philip met the request by a demand for the restitution of Gisors and the dower of his sister Margaret, young Henry’s widow, and it was with much difficulty that temporary peace was patched up; but it was finally arranged that part of the dowry should be restored, and Gisors transferred to Richard on his marriage with the Princess Alice.