Henry II of England: Founder of U.S. Common Law

Alexandria, VA – December 20, 2015

Let’s do something fun. Now, my definition of fun is probably different from yours. For me, fun is talking about medieval legal history. If you’re into that, keep reading

In my last post on Lanfranc, I had mentioned that William the Conqueror’s great-grandson, King Henry II of England (Plantagenet), is generally credited with being the “father” of U.S. common law. Henry’s story is extraordinary. This post will present a brief summary of Henry’s life and significance. There is no way I could do him justice in one blog post, but I’ll try.

William the Conqueror’s son, Henry I, became king of England when William died. When Henry I died, only his daughter, Matilda, survived him. Matilda came from strong stock, and was keenly aware of her right of inheritance. However, when she was a young girl, her father had sent her to Germany to marry the man who eventually became Henry V, the Holy Roman Emperor. Matilda grew up in the German court, spoke fluent German, and adopted German customs. Consequently, when her father died, leaving the English throne vacant, she was considered a foreigner in England. What ended up happening was that Stephen, her first cousin, assumed the English throne.

Matilda never forgot her birthright, but she was patient. After her first husband died, she married Count Geoffrey of Anjou, and they had Henry II of England.

The evidence strongly suggests that Henry was close with his mother. He spent his early years with her, and she had him educated by some of the brightest people at the time. The evidence reflects that Henry enjoyed literary and other intellectual discussions, and that he loved hunting. He was also a gifted strategist, exemplified by the fact that he was able to maintain control over such vast lands (England, Anjou, Normandy, and Aquitaine, the latter obtained through his marriage to Eleanor of Aquitaine).

Henry was red-haired and had the proverbial temper that (rightly or wrongly) tends to be associated with redheads. He was strong-willed, and highly intelligent. Indeed, Eleanor would never have married an unintelligent man.

Henry’s relatively short life (by our standards) was exceptional. He was the Count of Anjou and Duke of Normandy, and his mother would have undoubtedly taught him that he should rightfully be the King of England, not his cousin Stephen. Henry was impatient (a trait that his sons would inherit), but eventually, after attempting to militarily take England over from Stephen, brokered a deal with him, wherein Henry would assume the throne upon Stephen’s death. Less than one year later, Stephen died and Henry became Henry II of England. He was only 20 years old at the time.

I won’t discuss Henry’s wife, Eleanor of Aquitaine, at this time, because I will dedicate at least one post to her. Here, I’ll say only that Henry appears to have surrounded himself with extremely strong women. His mother, Matilda, was one. His wife, Eleanor, was no exception. In fact, Henry trusted Eleanor to manage England when he wasn’t around; and she ruled her own duchy, Aquitaine, pretty much by herself.

Many interesting things occurred during Henry II’s reign, including his tumultuous relationship with his sons; the wars he fought; the revolts he quelled (including a revolt organized by his own sons, and orchestrated by his own wife); the Thomas Becket controversy, etc. However, here I would like to point out the legal developments of his reign.

Henry believed that the delivery of justice was a key task of his role as a king, and he sought to continue a process begun by William the Conqueror and Archbishop Lanfranc, that of bringing cohesion to English law. During Henry’s time, England still had many different civil and ecclesiastical courts, which incorporated diverse legal traditions. Henry even heard some legal cases himself, while others were heard by local courts.

Henry maintained a treasury court that heard cases dealing with royal revenues. He dispatched several royal justices to visit all the counties in England, who had authority to cover civil and criminal cases. He cracked down on crime, seizing the property of thieves and fugitives.

Henry’s most significant legal development was his use of juries. While local juries had been used under previous rulers, Henry greatly expanded their use. Interestingly, the use of trial by combat and trial by ordeal continued concurrently with the use of local juries.

And, of course, the use of jury trials was eventually carried over to our own upstart nation. You have Henry II to thank for that.