Before Henry II’s reign, justice in England was a patchwork affair. In the middle of the 12th century, England was a kingdom on the brink of collapse. Torn apart by civil war, riddled with lawlessness, and strangled by feudal rivalries, the once-proud realm of the Anglo-Norman kings had become a chessboard of private power. Bandits roamed freely. Local lords dispensed justice—or vengeance—at will. The crown’s authority had thinned, especially during the 19-year chaos known as The Anarchy, when King Stephen and Empress Matilda battled for control.
When Henry II ascended the throne in 1154, he inherited not just a kingdom, but a crisis. There was no centralized legal code. Instead, a messy mix of customary laws, feudal rights, and ecclesiastical rules governed people’s lives. Disputes were often handled by local lords or church courts. The king’s justice reached only a fraction of the population, and it was inconsistent at best. What he built from the wreckage was more than peace: he laid the groundwork for the English Common Law, a revolutionary legal system that outlived empires, crossed oceans, and still shapes the world today.
The Foundations of Common Law
Henry was fascinated by order, precedent, and administration, and he saw law not only as a tool of justice, but as a weapon to defeat baronial autonomy. He believed that the crown, not the nobles, should be the ultimate source of justice.
He began by reforming the way justice was delivered, seeking a system that was:
- Accessible
- Uniform across the realm
- Tied to the crown, not local lords
This was the seed of Common Law: a system based on custom and royal precedent, evolving through court decisions, rather than imposed by written code (like Roman Law on the Continent). Royal judges, dispatched on circuits (known as eyres), heard cases in regional assize courts, ensuring consistency in rulings. These judges documented their decisions, creating precedents that formed the basis of a national legal framework. Their presence reminded every village and shire: the king is watching.
Ordeals and Trials: Random Justice Before Common Law
- Ordeal by Blessed Morsel involved a priest blessing a piece of bread or cheese (called the corsned) and gaving it to the accused. If they choked or could not swallow, they were guilty. If they swallowed easily, they were innocent. This was usually reserved for clergy or nobles. Legend says that Godwin, Earl of Wessex, died after choking on a corsned when denying guilt in the death of King Edward the Confessor’s brother.
- Ordeal by Water involved the accused being bound and thrown into a body of water. If they floated, they were guilty (rejected by the pure element of water), while if they sank, they were innocent—and hopefully pulled out in time. Used particularly for serfs and lower-status individuals. Surviving laws from King Cnut’s reign (early 11th century) reference this ordeal.
- Trial by Combat (Ordeal of Battle) could be used in disputes without witnesses or clear evidence, two parties fought—winner was declared just by divine favor. Especially used in cases involving honor, land, or accusations of serious crimes. Introduced more widely after the Norman Conquest (1066), but early Anglo-Saxon England also had customs akin to folk duels. William the Conqueror brought formalized combat into the legal system.
The Assize of Clarendon (1166): Crime Gets a System
Henry’s most important criminal law reform came with the Assize of Clarendon, passed in 1166. It brought fundamental changes:
Introduced the jury of presentment: Twelve men in each hundred (district) swore under oath to name anyone suspected of serious crimes like theft or murder. This wasn’t a trial jury, but more like a grand jury. Their job: to accuse, not decide guilt.
Accused persons were now sent to royal courts, not local lords. This pulled justice into royal hands and laid the foundation of the jury system.
It also marked the beginning of due process—as messy and brutal as medieval trials were (and they could be very messy), they now followed recognizable procedures.
The Assize of Northampton (1176)
In 1176, Henry doubled down with the Assize of Northampton, which expanded the categories of crimes covered, clarified penalties for various crimes, gave justices more power to seize property from suspected criminals and ordered the construction of gaols (jails) to hold suspects awaiting trial.
It was in this year that Henry formally divided the kingdom into judicial circuits, assigning royal judges to travel on fixed routes. This wasn’t just legal reform—it was nation-building.
The Jury System and Procedural Innovations
Under Henry, we see the earliest forms of trial by jury in the civil realm. In land disputes, parties could elect to use a jury of neighbors, rather than trial by battle or ordeal. Jurors were not impartial as today, but were expected to know the facts.
It was a radical shift: asking ordinary people to participate in justice, rather than leave it to divine tests or aristocratic power.This form of fact-finding became the model for future trials—growing gradually into the modern trial by jury.
The circuit judge system further institutionalized these practices. Six groups of royal judges toured counties, hearing cases and auditing local officials. Their itinerant nature made royal justice accessible nationwide, while their records (precursors to plea rolls) ensured accountability and continuity.
Administrative Centralization and Legal Codification
Henry’s reforms extended beyond courts to administrative structures. He standardized writs—royal orders initiating legal actions—such as the writ of right for property claims. These writs funneled disputes into royal courts, bypassing feudal jurisdictions. The treatise Glanvill (c. 1188), attributed to Henry’s justiciar Ranulf de Glanvill, codified these procedures, detailing writs, pleadings, and land law. Key innovations included:
- Limitations on delays: Restrictions on frivolous postponements streamlined litigation.
- Centralized oversight: Sheriffs and bailiffs answered directly to royal justices, curbing corruption.
This systematization made the law standardized, affordable, and efficient. They made justice predictable, and most importantly, loyal to the king. These writs form the scaffolding of English civil law. They also represent one of Henry’s greatest innovations: mass-access legal mechanisms backed by centralized authority.
Clash with the Church: The Becket Controversy
Henry’s legal ambitions collided with ecclesiastical privileges, epitomized in his feud with Archbishop Thomas Becket. The king sought to prosecute clergy in royal courts for secular crimes, challenging the Church’s traditional immunity. Becket’s murder in 1170 temporarily halted these efforts, but Henry eventually secured compromises, asserting royal jurisdiction over certain clerical offenses. This conflict underscored the tension between state and church authority, a recurring theme in legal history.
The Legacy of Henry’s Legal Reforms
By the time of Henry’s death in 1189, the landscape of English justice had been utterly transformed:
- Royal courts had eclipsed local courts.
- The king’s justice reached the entire kingdom.
- Uniform procedures—backed by royal authority—were becoming the norm.
- Subjects, not just nobles, could access the courts.
- Jury trials and due process were taking shape.
- The idea of a “common law” applicable across the land had begun to crystallize.
These reforms weren’t just bureaucratic tweaks—they were revolutions in how power worked. Henry’s reforms helped distinguish English law from the Continental civil law tradition, based on Roman codes. While Europe codified its laws in top-down statutes, England favored:
- Precedent over prescription
- Procedure over philosophy
- Juries over professional judges
This bottom-up, adaptive, precedent-driven approach is what still defines Common Law systems today—from the US and Canada to India and Australia. And it all began under a 12th-century king with a sharp legal mind and an even sharper sense of control.
“The law is the strongest chain that binds the realm.”
— attributed to Henry II, King of England, 12th century
This very important piece omits one fundamental imperative which drove reforms, viz. the imperative of the monarch to save his soul from eternal damnation by ruling “with Justice and Mercy” as oaths, especially solemn coronation oaths, were taken with utmost seriousness, even if often ‘honoured in the breach’. The imperative to save one’s soul was effectively universal in Christendom. “Inventing the Individual – The Origins of Western Liberalism” [Larry Siedentop 2014] is instructive, as is “Christian Foundations of the Common Law” [ Zimmermann 2018].