The Assize of Clarendon is a document of great significance in the legal and constitutional history of England. It dates from the year 1166 during the reign of Henry II and established what might be termed a proper and formal judicial procedure, that is;
- the calling of a grand jury to make inquiry in respect of those responsible for criminal acts;
- that persons so charged by the jury were to be arrested by an appointed sheriff and brought before the county court to receive justice;
- that no one is permitted to prevent the sheriff from executing an arrest;
- and that jails are to be provided to hold those awaiting trial.
There are also provisions against vagrancy
and a requirement for sheriffs to maintain and circulate "a list of all fugitives who have fled from their counties
The Assize was issued in reaction to the period known as The Anarchy
, when under the reign of the previous king Stephen
, local magnates had often usurped control over the machinery of justice in the process of seizing as much power for themselves as they could.
(Note that at this point in history the criminal justice system was often a source of great profit through the imposition of fines and the seizure of goods from those convicted, hence the desire of individual magnates to take control for themselves and why the document refers to the seizure of chattels "for the benefit of the king" and states that "no one is to have court or justice or chattels except the lord king in his court before his justices, and the lord king shall have all their chattels.", and why the king was so keen to control it himself.)
Henry II was re-asserting royal control over the judical system, but it is interesting to note that he legitimises this control not by appeal to some divine mandate or timeless tradition but by insisting that this is done "on the advice of all his barons" and "with the assent of the archbishops, bishops, abbots, earls, and barons of all England".
Henry II may have provided himself with a get-out clause at then end by stating that "this assize be held in his kingdom as long as it shall please him", but here we see the first glimmers of the notion that whereas the king of England might be king his rule was in someway subject to the consent of those he ruled.
The Assize of Clarendon
Here begins the Assize of Clarendon made by King Henry, namely the second, with the assent of the archbishops, bishops, abbots, earls, and barons of all England.
1. In the first place the said King Henry ordained on the advice of all his barons, for preserving peace and maintaining justice, that inquiry be made through the several counties and through the several hundreds by twelve more lawful men of the hundred and by four more lawful men of each vill, upon oath that they will tell the truth, whether in their hundred or in their vill there is any man cited or charged as himself being a robber or murderer or thief or any one who has been a receiver of robbers or murderers or thieves since the lord king was king. And let the justices inquire this before themselves and the sheriffs before themselves.
2. And he who shall be found by the oath of the aforesaid cited or charged as having been a robber or murderer or thief or a receiver of them since the lord king was king, let him be arrested and go to the judgment of water, and let him swear that he was not a robber or murderer or thief or a receiver of them since the lord king was king, to the value of five shillings so far as he knows.
3. And if the lord of him who was arrested or his steward or his men demand him by pledge within the third day after his arrest, let him be given up and his chattels until he make his law.
4. And when a robber or murderer or thief or the receivers of them be arrested through the aforesaid oath, if the justices are not to come quite soon into the county where the arrests have been made, let the sheriffs send word by some intelligent man to one of the nearer justices that such men have been taken; and the justices shall send back word to the sheriffs where they wish to have the men brought before them; and the sheriffs shall bring them before the justices; and also they shall bring with them from the hundred and the vill where the arrests have been made two lawful men to carry the record of the county and hundred as to why the men were arrested, and there before the justices let them make their law.
5. And in the case of those who are arrested by the aforesaid oath of this assize no one is to have court or justice or chattels except the lord king in his court before his justices, and the lord king shall have all their chattels. But as to those who have been arrested otherwise than by this oath, let it be as it is accustomed and ought to be.
6. And let the sheriffs who have arrested them bring them before the justice without any other summons than they shall have from him. And when robbers, murderers, thieves, or their receivers, who have been arrested through the oath or otherwise, are turned over to the sheriffs, they are forthwith to receive them without delay.
7. And in the several counties where there are no jails, let them be made in a borough or in some castle of the king at the king's expense and from his wood if it is near, or from some neighbouring wood, on the estimation of the king's servants, to the end that the sheriffs may keep in them those who have been arrested by the officers whose function it is to do this and by their servants.
8. Also it is the king's will that all come to the county courts to make this oath, so that no one stay away on account of any immunity which he has or court or jurisdiction which he has held; but they are to come to make this oath.
9. And let there not be any one within a castle or outside a castle, or indeed in the honour of Wallingford, who shall refuse to let the sheriffs enter his court or his land to view the frankpledges and to see that all are under pledges; and let them be sent before the sheriffs under a free pledge.
10. And let no one in the cities or boroughs have men or receive them into his house, land, or jurisdiction, whom he will not undertake to produce before the justice if they are sought; or else let him be in frank-pledge.
11. And let there be no one in city or borough, inside or outside a castle, or in the honour of Wallingford who shall deny entrance to the sheriffs into their land or jurisdiction for the purpose of arresting those who have been cited or charged as being robbers or murderers or thieves or the receivers of them, or outlaws or those cited in a matter touching the forest; but it is commanded that they help them in making the arrest.
12. And if any one be taken who has the spoil of his robbery or theft in his possession, if he bear an ill name and have a notoriously bad reputation, and have no warrant, let him not have law. But if he be not suspected on account of what he has in his possession, let him go to the water.
13. And if any one, in the presence of lawful men or the hundreds, make confession of robbery, murder, theft, or the reception of those committing them, and should later wish to deny it, let him not have law.
14. Moreover the lord king wills that those who make their law and are quit thereby, if they have a very bad reputation and are publicly and scandalously decried on the testimony of many lawful men, shall forswear the king's lands, to the effect that within eight days they shall cross the sea unless the wind detain them; and with the first wind which they have thereafter they shall cross the sea, and they shall never return to England unless by the grace of the lord king; and there let them be outlaws, and if they return let them be taken as outlaws.
15. And the lord king forbids that any waif, that is to say a vagrant or unknown person, be given lodging with any one except in a borough; and he is not to be lodged there except for one night, unless he be sick while there or his horse, so that he is able to show an evident excuse.
16. And if he should stay there more than one night, he is to be arrested and held until his lord come to stand pledge for him, or until he himself secure good pledges; and he who lodged him is also to be arrested.
17. And if a sheriff send word to another sheriff that men have fled from his county to the other county because of robbery, murder, theft, or the reception of those committing them, or for outlawry or an offense against the king's forest, let the latter sheriff arrest them; and indeed if he find out of himself or through others that such men have fled into his county, he is to arrest and hold them until he have sure pledges for them.
18. And let all the sheriffs make a list of all fugitives who have fled from their counties; and let them do this before the county courts, and they shall bring the names of these men in writing before the justices when first they come to them, in order that they may be sought throughout all England and their chattels seized for the benefit of the king.
19. And the lord king wills that as soon as the sheriffs receive the summonses of the itinerant justices to be before them with their county courts, they shall assemble their county courts and find out all who have recently come into their counties, since this assize; and they are to send these away under pledges to appear before the justices, or else keep them in custody until the justices come to them, and then produce them before the justices.
20. Also the lord king forbids monks or canons or any monastic house to receive any of the lower class of people as monk, canon, or brother until his reputation be known, unless he be sick unto death.
21. Moreover the lord king forbids that any one in all England should receive into his land or jurisdiction or any house of his, any of the sect of those apostates who have been excommunicated and branded at Oxford. And if any one receives them he shall be in the mercy of the lord king; and the house in which they were shall be carried outside the vill and burned. And every sheriff shall take oath to maintain this, and he shall cause to take the same oath all his ministers and the baron's stewards, and all the knights and freeholders of the counties.
22. And the lord king wills that this assize be held in his kingdom as long as it shall please him.
A note on sources
There are three different translations of the Assizes that I have come accross, they all seem to be much of a muchness as far as I can see except that the Henderson translation uses the archaic (but probably original) soc in place of 'jurisdiction'.
- 1 - Albert Beebe White and Wallace Notestein, eds., Source Problems in English History (New York: Harper and Brothers, 1915)
- 2 - Henderson, Ernest F. Select Historical Documents of the Middle Ages (London : George Bell and Sons, 1896)
- 3 - Carl Stephenson and Frederick George Marcham ed., Sources of English Constitutional History (New York: Harper, 1937)
The above is derived from Source 1.