Assize of Clarendon
Encyclopedia
The Assize of Clarendon was an 1166 act of Henry II of England
that began the transformation of English law
from such systems for deciding the prevailing party in a case as trial by ordeal
or trial by battle to an evidentiary model, in which evidence
and inspection was made by laymen. This act greatly fostered the methods that would eventually be known in common law
countries as trial by jury
.
The Assize of Clarendon did not lead to this change immediately, however; recourse to trial by combat was not officially rescinded until 1819.
The Assize takes its name from Clarendon Palace
, Wiltshire, the royal hunting lodge at which it was promulgated.
in England at the time, and sorting out who owned what fief was entrusted to human memory, disputes arose when aristocrats returned, or died thousands of miles from home.
Another, even more serious problem requiring royal action was the aftermath of the disastrous civil war
between King Stephen
and the Empress Maud. The two competing factions had hired mercenary
soldiers, and when there was no one left to pay them, many of them took up robbery
and other forms of violence as a profession. Crime followed the breakdown of local authority. The quarrel between the King and the Empress created more property troubles; as communities were divided, both factions were happy to reward their supporters with the lands of the local opponents.
Finally, there was the long-standing difficulty involving the Church, which culminated in the murder of Thomas Becket
, the Archbishop of Canterbury
. The problem for the King was that the Church acted like an imperium in imperio, a "kingdom within a kingdom", only partially subject to Henry's laws if at all. The Church operated its own court system, which answered not to Henry but to the Pope
, it was a large landowner and a powerful vested interest. Henry wished to establish a system of justice that would enlarge the power of the Crown
at the expense of the clergy.
, of mort d'ancestor
, and of darrein presentment
. The most popular one became the assize of novel disseisin, which in Law French
meant something close to the "assize of recent dispossession". Those who had been recently put out of their lands could recover the beneficial use of them by resort to this assize, which led to a then innovative method of trial. Twelve "sword-girt" knight
s of the locality were summoned to determine, upon their own knowledge, who was entitled to the property. This innovative method of proceeding, the origin of the civil petit jury at common law
, was aimed at the chaos introduced into property rights by crusade and civil war.
Henry's true measure of cleverness, though, is on display in his innovations in criminal justice
. Henry appointed "justice
s in eyre," the counterpart of circuit judges, to travel from town to town. When they arrived, they too called upon "sword-girt knights" to summon twenty four free men from the surrounding areas. These twenty-four free men were the first grand jury
. They were called to report under oath
any accusations of crime
they were aware of in the community. In theory, then as now, the grand jury only brought accusations; it did not find guilt or innocence.
This new assize did away with the old form of trial known as "compurgation" in accusations brought by the grand jury. Under compurgation, an accused person who swore he didn't do the crime, and who found a sufficient number of his neighbours to swear that they believed him, was acquitted. Compurgation was no longer available in charges brought by the grand jury.
The trial available to the defendant remained the traditional trial by ordeal
. Nevertheless, Henry did not put much faith in the results of the ordeal. The unfortunate felon
who was convicted through the ordeal was, of course, executed. But even if the indicted culprit was acquitted in the ordeal, he was banished. In other words, the proceedings by the grand jury were the actual trial; everyone it accused was punished, and the community rid of the malefactor, one way or another.
s and into the hands of the royal court
and its judge
s. In 1215, moreover, the Fourth Lateran Council forbade clergy
men of the Church
from participating in trial by ordeal. After this date, trials after indictment by the grand jury were conducted by juries as well.
The large changes wrought in the English system of justice did not go unchallenged. The dispute over jurisdiction
over the one-sixth of the population of England who were clergy
was the chief grievance between the King and Becket. Disgruntled peers
attempted to undo Henry's reforms by the Magna Carta
forced on King John
, but by that time the reforms had progressed too far — and their superiority over the system they had replaced was too obvious — for the forces of reaction to gain much ground. Henry II's reforms laid the groundwork for the system of trial
s in common law
.
Henry II of England
Henry II ruled as King of England , Count of Anjou, Count of Maine, Duke of Normandy, Duke of Aquitaine, Duke of Gascony, Count of Nantes, Lord of Ireland and, at various times, controlled parts of Wales, Scotland and western France. Henry, the great-grandson of William the Conqueror, was the...
that began the transformation of English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
from such systems for deciding the prevailing party in a case as trial by ordeal
Trial by ordeal
Trial by ordeal is a judicial practice by which the guilt or innocence of the accused is determined by subjecting them to an unpleasant, usually dangerous experience...
or trial by battle to an evidentiary model, in which evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
and inspection was made by laymen. This act greatly fostered the methods that would eventually be known in common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
countries as trial by jury
Jury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...
.
The Assize of Clarendon did not lead to this change immediately, however; recourse to trial by combat was not officially rescinded until 1819.
The Assize takes its name from Clarendon Palace
Clarendon Palace
Clarendon Palace is a medieval ruin near Salisbury in Wiltshire, England.The palace was a royal residence during the Middle Ages, and was the location of the Assize of Clarendon which developed the Constitutions of Clarendon.-Roman Times:...
, Wiltshire, the royal hunting lodge at which it was promulgated.
Problems addressed by the Assize
Henry II inherited the throne of a troubled kingdom. The Crusades were in full swing at the time, a military endeavour that kept noble landowners away from their castles for years at a time. Unoccupied and unclaimed land invited squatters; since there was no central recording office for real propertyReal property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
in England at the time, and sorting out who owned what fief was entrusted to human memory, disputes arose when aristocrats returned, or died thousands of miles from home.
Another, even more serious problem requiring royal action was the aftermath of the disastrous civil war
Civil war
A civil war is a war between organized groups within the same nation state or republic, or, less commonly, between two countries created from a formerly-united nation state....
between King Stephen
Stephen of England
Stephen , often referred to as Stephen of Blois , was a grandson of William the Conqueror. He was King of England from 1135 to his death, and also the Count of Boulogne by right of his wife. Stephen's reign was marked by the Anarchy, a civil war with his cousin and rival, the Empress Matilda...
and the Empress Maud. The two competing factions had hired mercenary
Mercenary
A mercenary, is a person who takes part in an armed conflict based on the promise of material compensation rather than having a direct interest in, or a legal obligation to, the conflict itself. A non-conscript professional member of a regular army is not considered to be a mercenary although he...
soldiers, and when there was no one left to pay them, many of them took up robbery
Robbery
Robbery is the crime of taking or attempting to take something of value by force or threat of force or by putting the victim in fear. At common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear....
and other forms of violence as a profession. Crime followed the breakdown of local authority. The quarrel between the King and the Empress created more property troubles; as communities were divided, both factions were happy to reward their supporters with the lands of the local opponents.
Finally, there was the long-standing difficulty involving the Church, which culminated in the murder of Thomas Becket
Thomas Becket
Thomas Becket was Archbishop of Canterbury from 1162 until his murder in 1170. He is venerated as a saint and martyr by both the Roman Catholic Church and the Anglican Communion...
, the Archbishop of Canterbury
Archbishop of Canterbury
The Archbishop of Canterbury is the senior bishop and principal leader of the Church of England, the symbolic head of the worldwide Anglican Communion, and the diocesan bishop of the Diocese of Canterbury. In his role as head of the Anglican Communion, the archbishop leads the third largest group...
. The problem for the King was that the Church acted like an imperium in imperio, a "kingdom within a kingdom", only partially subject to Henry's laws if at all. The Church operated its own court system, which answered not to Henry but to the Pope
Pope
The Pope is the Bishop of Rome, a position that makes him the leader of the worldwide Catholic Church . In the Catholic Church, the Pope is regarded as the successor of Saint Peter, the Apostle...
, it was a large landowner and a powerful vested interest. Henry wished to establish a system of justice that would enlarge the power of the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
at the expense of the clergy.
The Assizes
Henry therefore founded various assizes, known respectively as the assize of novel disseisinAssize of novel disseisin
In English law, the Assize of novel disseisin was an action to recover lands of which the plaintiff had been disseised, or dispossessed. The action became extremely popular due to its expediency...
, of mort d'ancestor
Assize of mort d'ancestor
In English law, the Assize of mort d'ancestor was an action brought where a plaintiff claimed the defendant had entered upon a freehold belonging to the plaintiff following the death of one of his relatives....
, and of darrein presentment
Assize of darrein presentment
In English law, the Assize of darrein presentment was an action brought to enquire who was in fact the last patron to present a benefice to a church then vacant, of which the plaintiff complained that he was deforced or unlawfully deprived by the defendant...
. The most popular one became the assize of novel disseisin, which in Law French
Law French
Law French is an archaic language originally based on Old Norman and Anglo-Norman, but increasingly influenced by Parisian French and, later, English. It was used in the law courts of England, beginning with the Norman Conquest by William the Conqueror...
meant something close to the "assize of recent dispossession". Those who had been recently put out of their lands could recover the beneficial use of them by resort to this assize, which led to a then innovative method of trial. Twelve "sword-girt" knight
Knight
A knight was a member of a class of lower nobility in the High Middle Ages.By the Late Middle Ages, the rank had become associated with the ideals of chivalry, a code of conduct for the perfect courtly Christian warrior....
s of the locality were summoned to determine, upon their own knowledge, who was entitled to the property. This innovative method of proceeding, the origin of the civil petit jury at common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, was aimed at the chaos introduced into property rights by crusade and civil war.
Henry's true measure of cleverness, though, is on display in his innovations in criminal justice
Criminal justice
Criminal Justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts...
. Henry appointed "justice
Justice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
s in eyre," the counterpart of circuit judges, to travel from town to town. When they arrived, they too called upon "sword-girt knights" to summon twenty four free men from the surrounding areas. These twenty-four free men were the first grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
. They were called to report under oath
Oath
An oath is either a statement of fact or a promise calling upon something or someone that the oath maker considers sacred, usually God, as a witness to the binding nature of the promise or the truth of the statement of fact. To swear is to take an oath, to make a solemn vow...
any accusations of crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
they were aware of in the community. In theory, then as now, the grand jury only brought accusations; it did not find guilt or innocence.
This new assize did away with the old form of trial known as "compurgation" in accusations brought by the grand jury. Under compurgation, an accused person who swore he didn't do the crime, and who found a sufficient number of his neighbours to swear that they believed him, was acquitted. Compurgation was no longer available in charges brought by the grand jury.
The trial available to the defendant remained the traditional trial by ordeal
Trial by ordeal
Trial by ordeal is a judicial practice by which the guilt or innocence of the accused is determined by subjecting them to an unpleasant, usually dangerous experience...
. Nevertheless, Henry did not put much faith in the results of the ordeal. The unfortunate felon
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
who was convicted through the ordeal was, of course, executed. But even if the indicted culprit was acquitted in the ordeal, he was banished. In other words, the proceedings by the grand jury were the actual trial; everyone it accused was punished, and the community rid of the malefactor, one way or another.
Effects of the Assize
These proceedings did much to transfer power out of the hands of local baronBaron
Baron is a title of nobility. The word baron comes from Old French baron, itself from Old High German and Latin baro meaning " man, warrior"; it merged with cognate Old English beorn meaning "nobleman"...
s and into the hands of the royal court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
and its judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s. In 1215, moreover, the Fourth Lateran Council forbade clergy
Clergy
Clergy is the generic term used to describe the formal religious leadership within a given religion. A clergyman, churchman or cleric is a member of the clergy, especially one who is a priest, preacher, pastor, or other religious professional....
men of the Church
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church, with over a billion members. Led by the Pope, it defines its mission as spreading the gospel of Jesus Christ, administering the sacraments and exercising charity...
from participating in trial by ordeal. After this date, trials after indictment by the grand jury were conducted by juries as well.
The large changes wrought in the English system of justice did not go unchallenged. The dispute over jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
over the one-sixth of the population of England who were clergy
Clergy
Clergy is the generic term used to describe the formal religious leadership within a given religion. A clergyman, churchman or cleric is a member of the clergy, especially one who is a priest, preacher, pastor, or other religious professional....
was the chief grievance between the King and Becket. Disgruntled peers
Peerage
The Peerage is a legal system of largely hereditary titles in the United Kingdom, which constitute the ranks of British nobility and is part of the British honours system...
attempted to undo Henry's reforms by the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
forced on King John
John of England
John , also known as John Lackland , was King of England from 6 April 1199 until his death...
, but by that time the reforms had progressed too far — and their superiority over the system they had replaced was too obvious — for the forces of reaction to gain much ground. Henry II's reforms laid the groundwork for the system of trial
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...
s in common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
.