Henry the Second - Mrs. J. R. Green
Such were in brief outline some of the difficulties which made order and
justice hard to win. Society was helpless to protect itself: news spread
slowly, the communication of thought was difficult, common action was
impossible. Amid all the shifting and half understood problems of
medieval times there was only one power to which men could look to protect
them against lawlessness, and that was the power of the king. No external
restraints were set upon his action; his will was without contradiction.
The medieval world with fervent faith believed that he was the very spring
and source of justice. In an age when all about him was changing, and when
there was no organized machinery for the administration of law, the king
had himself to be judge, lawgiver, soldier, financier, and administrator;
the great highways and rivers of the kingdom were in "his peace;" the
greater towns were in his demesne; he was guardian of the poor and
defender of the trader; he was finance minister in a society where
economic conditions were rapidly changing; here presented a developed
system of law as opposed to the primitive customs of feud and private war;
he was the only arbiter of questions that grew out of the new conflict of
classes and interests; he alone could decree laws at his absolute will and
pleasure, and could command the power to carry out his decrees; there was
not even a professional lawyer who was not in his court and bound to his
service.
Henry saw and used his opportunity. Even as a youth of twenty-one he
assumed absolute control in his courts with a knowledge and capacity which
made him fully able to meet trained lawyers, such as his chancellor,
Thomas, or his justiciar, De Lucy. Cool, businesslike, and prompt, he set
himself to meet the vast mass of arrears, the questions of jurisdiction
and of disputed property, which had arisen even as far back as the time of
Henry I., and had gone unsettled through the whole reign of Stephen, to
the ruin and havoc of the lands in question. He examined every charter
that came before him; if any was imperfect he was ready to draw one up
with his own hand; he watched every difficult point of law, noted every
technical detail, laid down his own position with brief decision. In the
uncertain and transitional state of the law the king's personal
interference knew scarcely any limits, and Henry used his power freely.
But his unswerving justice never faltered. Gilbert de Bailleul, in some
claim to property, ventured to make light of the charter of Henry I., by
which it was held. The king's wrath blazed up. "By the eyes of God," he
cried, "if you can prove this charter false, it would be worth a thousand
pounds to me! If," he went on, "the monks here could present such a
charter to prove their possession of Clarendon, which I love above all
places, there is no pretence by which I could refuse to give it up to
them!"
It is hard to realise the amazing physical endurance and activity which
was needed to do the work of a medieval king. Henry was never at rest. It
was only by the most arduous labour, by travel, by readiness of access to
all men, by inexhaustible patience in weighing complaint and criticism,
that he learned how the law actually worked in the remotest corners of
his land. He was scarcely ever a week in the same place; his life in
England was spent in continual progresses from south to north, from east
to west. The journeyings by rough trackways through "desert" and swamp
and forest, through the bleak moorlands of the Pennine Hills, or the
thickets and fens that choked the lower grounds, proved indeed a sore
trial for the temper of his courtiers; and bitter were the complaints of
the hardships that fell to the lot of the disorderly train that swept
after the king, the army of secretaries and lawyers, the mail-clad
knights and barons followed by their retainers, the archbishop and his
household, bishops and abbots and judges and suitors, with the "actors,
singers, dicers, confectioners, huxters, gamblers, buffoons, barbers, who
diligently followed the court." Knights and barons and clerks, accustomed
to the plenty and comfort of palace and castle, found themselves at the
mercy of every freak of the king's marshals, who on the least excuse
would roughly thrust them out into the night from the miserable hut in
which they sought shelter and cut loose their horses' halters, and whose
hearts were hardly softened by heavy bribes. They were often half-starved;
if food was to be had at all, it was at the best stale fish, sour beer and
wine, coarse black bread, and meat scarcely eatable, even with the rough
appetite of travellers of that age. Matters were made ten times worse by
Henry's mode of travelling. "If the king has proclaimed that he intends to
stop late in any place, you may be sure that he will start very early in
the morning, and with his sudden haste destroy every one's plans. It often
happens that those who have let blood or taken medicine are obliged at the
hazard of their lives to follow. You will see men running about like mad;
urging forward their pack-horses, driving their waggons into one another,
everything in confusion, as if hell had broken loose. Whereas, if the king
has given out that he will start early in the morning, he will certainly
change his mind, and you may be sure he will snore till noon. You will see
the pack-horses drooping under their loads, waggons waiting, drivers
nodding, tradesmen fretting, all grumbling at one another. Men hurry to
ask the loose women and the liquor retailers who follow the court when the
king will start; for these are the people who know most of the secrets of
the court." Sometimes, on the other hand, when the din of the camp was
silenced for a while in sleep, a sudden message from the royal lodging
would again set all in commotion. A wild clatter of horsemen and footmen
would fill the darkness. The stout pack-horses, probably borrowed from a
neighbouring monastery to carry the heavy Rolls in which state business
was chronicled, were hastily laden. Baggage of every kind was slung across
the backs of horses, or stowed into cumbrous two-wheeled waggons made of
rough planks, or of laths covered with twisted osiers, which had been
seized from farmer or peasant for the king's journey. The forerunners
pushed on in front to give notice of the king's arrival, and in the dim
morning light the motley train of riders at last crowded along the narrow
trackway, followed heavily by the waggons dragged by single file of
horses, which too often foundered in the muddy hollows, or half-plunged
into the torrents through rents and chasms in the low, narrow bridges that
threatened at every instant to crumble away under the strain. But before
the weary day's journey was over the king would suddenly change his mind,
stop short of the town towards which all were toiling in hope of food and
shelter, and turn aside to some spot in the woods where there was perhaps
a solitary hut and food only for himself: "And I believe, if I dare to say
so, that he took delight in our distresses," groans the poor secretary as
he pictures the knights wandering by twos and threes in the thickets,
separated in the darkness from their followers, and drawing their swords
one against another in furious strife for the possession of some shelter
for which pigs would scarcely have quarrelled. "Oh, Lord God Almighty,"
he ends, "turn and convert the heart of the king from this pestilent
habit, that he may know himself to be but man, and that he may show a
royal mercy and human compassion to those who are driven after him not
by ambition but by necessity."
But at whatever inconvenience to his courtiers Henry carried out his
own purposes, and kept pace with the enormous mass of business that came
to him. In all his hurried journeys we see busy royal clerks scribbling
away at each halt charters, grants, letters patent and letters close, the
king too fighting, riding, dictating, signing, sometimes dating his
letters from three places on the same day. A travelling king such as this
was well known to all his people. He was no constitutional fiction, but a
living man; his character, his look and presence, his oaths and jests,
his wrath, all were noted and talked over; the chroniclers who followed
his court with their gossip and their graver news spread the knowledge of
his doings. A new sense of law and justice grew up under a sovereign who
himself journeyed through the length and breadth of the land, subduing
the unruly, hearing pleas, revising unjust sentences, drawing up charters
with his own hand, setting the machinery of government to work from end
to end of England. More than this, the king himself had learned to know
his people. He had seen for himself the castles of the barons, the huts
of the peasants, the little villages in the clearings; he had seen the
sheriff sitting in the shire court, the lord of the manor doing justice
in his "hall-moot," the bishop and archdeacon dispensing the law in the
church courts. By his sudden journeys, his unexpected movements and rapid
change of plans, he arrived at the very moment and the very place where
no one looked for him; nothing was safe from his eye and ear; no false
sheriff or rebellious lord could be sure when his terrible master might
be at his doors. Foreigner as the king was, there was soon no Englishman
who knew the affairs of his kingdom so well. His penetrating curiosity,
his wide experience, his practised judgment, rapidly made him one of the
most sagacious administrators and wisest legislators that ever guided
England in a very critical moment of her history; and when he finally
drew up his system of reform there was not a single point of principle in
it from which he or his successors found it necessary afterwards to draw
back.
CHAPTER IV
THE FIRST REFORMS
Henry began his work of reorganization by taking up the work which his
grandfather had begun--that of replacing the mere arbitrary power of the
sovereign by a uniform system of administration, and bringing into order
the various conflicting authorities which had been handed down from
ancient times, royal courts and manor courts, church courts, shire
courts, hundred courts, forest courts, and local courts in special
franchises, with all their inextricable confusion of law and custom and
procedure. Under Henry I. two courts, the _Exchequer_ and the _Curia
Regis_, had control of all the financial and judicial business of the
kingdom. The Exchequer filled a far more important place in the national
life than the Curia Regis, for the power of the king was simply measured
by the state of the treasury, when wars began to be fought by mercenaries,
and justice to be administered by paid officials. The court had to keep a
careful watch over the provincial accounts, over the moneys received from
the king's domains, and the fines from the local courts. It had to
regulate changes in the mode of payment as the use of money gradually
replaced the custom of payments in kind. It had to watch alterations in
the ownership and cultivation of land, to modify the settlement of
Doomsday Book so as to meet new conditions, and to make new distribution
of taxes. There was no class of questions concerning property in the most
remote way which might not be brought before its judges for decision.
Twice a year the officers of the royal household, the Chancellor,
Treasurer, two Chamberlains, Constable, and Marshal, with a few barons
chosen from their knowledge of the law, sat with the Justiciar at their
head, as "Barons of the Exchequer" in the palace at Westminster, round
the table covered with its "chequered" cloth from which they took their
name. In one chamber, the Exchequer of Account, the "Barons" received the
reports of the sheriffs from every county, and fixed the sums to be
levied. In a second chamber, the Exchequer of Receipt, the sheriff or
tax-farmer paid in his dues and took his receipts. The accounts were
carefully entered on the treasurer's roll, which was called from its
shape the Great Roll of the Pipe, and which may still be seen in our
Record Office; the chancellor kept a duplicate of this, known as the Roll
of the Chancery; and an officer of the king registered in a third Roll
matters of any special importance. Before the death of Henry I. the vast
amount and the complexity of business in the Exchequer Court made it
impossible that it should any longer be carried on wholly in London. The
"Barons" began to travel as itinerant judges through the country; as the
king's special officers they held courts in the provinces, where difficult
local questions were tried and decided on the spot. So important did the
work of finance become that the study of the Exchequer is in effect the
key to English history at this time. It was not from any philosophic love
of good government, but because the license of outrage would have
interrupted there turns of the revenue that Henry I. claimed the title of
the "Lion of justice." It was in great measure from a wish to sweep the
fees of the Church courts into the royal Hoard that the second Henry began
the strife with Becket in the Constitutions of Clarendon, and the increase
of revenue was the efficient cause of the great reforms of justice which
form the glory of his reign. It was the fount of English law and English
freedom.
The Curia Regis was composed of the same great officers of the household
as those who sat in the Exchequer, and of a few men chosen by the king
for their legal learning; but in this court they were not known as
"Barons" but as "Justices," and their head was the Chief Justice. The
Curia Regis dealt with legal business, with all causes in which the
king's interest was concerned, with appeals from the local courts, and
from vassals who were too strong to submit to their arbitration, with
pleas from wealthy barons who had bought the privilege of laying their
suit before the king, besides all the perplexed questions which lay far
beyond the powers of the customary courts, and in which the equitable
judgment of the king himself was required. In theory its powers were
great, but in practice little business was actually brought to it in the
time of Henry I; the distance of the court from country places, and the
expense of carrying a suit to it, would alone have proved an effectual
hindrance to its usefulness, even if the rules by which it was guided had
been much more complete and satisfactory than they actually were.
The routine of this system of administration, as well as the mass of
business to be done, effectually interfered with arbitrary action on the
king's part, and the regular and methodical work of the organized courts
gave to the people a fair measure of protection against the tyranny or
caprice of the sovereign. But the royal power which was given over to
justices and barons did not pass out of the hands of the king. He was
still in theory the fount of all authority and law, and could, whenever
he chose, resume the powers that he had granted. His control was never
relaxed; and in later days we find that while judges on circuit who gave
unjust judgment were summoned before the Curia Regis at Westminster, the
judges of the Curia Regis itself were called for trial before the king
himself in his council.
The reorganization of these courts was fast completed under Henry's great
justiciar, De Lucy, and the chancellor Thomas. The next few years show an
amount of work done in every department of government which is simply
astonishing. The clerks of the Exchequer took up the accounts and began
once more regular entries in the Pipe Roll; plans of taxation were
devised to fill the empty hoard, and to check the misery and tyranny
under which the tax payers groaned. The king ordered a new coinage which
should establish a uniform system of money over the whole land. As late
as the reign of Henry I. the dues were paid in kind, and the sheriffs
took their receipts for honey, fowls, eggs, corn, wax, wool, beer, oxen,
dogs, or hawks. When, by Henry's orders, all payments were first made in
coin to the Exchequer, the immediate convenience was great, but the state
of the coinage made the change tell heavily against the crown. It was
impossible to adulterate dues in kind; it was easy to debase the coin
when they were paid in money, and that money received by weight, whether
it were coin from the royal mints, or the local coinages that had
continued from the time of the early English kingdoms, or debased money
from the private mints of the barons. Roger of Salisbury, in fact, when
placed at the head of the Exchequer, found a great difference between the
weight and the actual value of the coin received. He fell back on a
simple expedient; in many places there had been a provision as old at
least as Doomsday, which enacted that the money weighed out for town-geld
should if needful be tested by re-melting. The treasurer extended this to
the whole system of the Exchequer. He ordered that all money brought to
the Exchequer should itself be tested, and the difference between its
weight and real value paid by the sheriff who brought it. The burden thus
fell on the country, for the sheriff would of course protect himself as
far as he could by exacting the same tests on all sums paid to him. If
the pound was worth but ten shillings in the market, no doubt the sheriff
only took it for ten shillings in his court. Practically each tax, each
due, must have been at least doubled, and the sheriff himself was at the
mercy of the Exchequer moneyers. There was but one way to remedy the
evil, by securing the purity of the coin, and twice during his reign
Henry made this his special care.
In the absence of records we can only dimly trace the work of legal reform
which was carried out by Henry's legal officers; but it is plain that
before 1164 certain great changes had already been fully established. A
new and elaborate system of rules seems gradually to have been drawn up
for the guidance of the justices who sat in the Curia Regis; and a new set
of legal remedies in course of time made the chances of justice in this
court greater than in any other court of the realm. The _Great Assize_, an
edict whose date is uncertain, but which was probably issued during the
first years of his reign, developed and set in full working order the
imperfect system of "recognition" established by the Norman kings.
Henceforth the man, whose right to his freehold was disputed, need but
apply to the Curia Regis to issue an order that all proceedings in the
local courts should be stopped until the "recognition" of twelve chosen
men had decided who was the rightful owner according to the common
knowledge of the district, and the barbarous foreign custom of settling
the matter by combat was done away with. Under the new system the Curia
Regis eventually became the recognized court of appeal for the whole
kingdom. So great a mass of business was drawn under its control that the
king and his regular ministers could no longer suffice for the work, and
new judges had to be added to the former staff; and at last the positions
of the two chief courts of the kingdom were reversed, and the King's Court
took the foremost place in the amount and importance of its business.
The same system of trial by sworn witnesses was also gradually extended
to the local courts. By the new-fashioned royal system the legal men of
hundreds and townships, the knights and freeholders, were ordered to
search out the criminals of their district, and "present" them for trial
at the Shire Court,--something after the fashion of the "grand jury" of
to-day, save that in early times the jurors had themselves to bear
witness, to declare what they knew of the prisoner's character, to say if
stolen goods had been divided in a certain barn, to testify to a coat by
a patch on the shoulder. By a slow series of changes which wholly
reversed their duties, the "legal men" of the juries of "presentment" and
of "recognition" were gradually transformed into the "jury" of to-day;
and even now curious traces survive in our courts of the work done by the
ancestors of the modern jury. In criminal cases in Scotland the oath
still administered by the clerk to jurymen carries us back to an ancient
time: "You fifteen swear by Almighty God, and as you shall answer to God
at the great day of judgment, you will truth say and no truth conceal, in
so far as you are to pass on this assize."
The provincial administration was set in working order. New sheriffs took
up again the administration of the shires, and judges from the King's
Court travelled, as they had done in the time of Henry I., through the
land. The worst fears of the baronage were justified. They were disabled
by one blow after another. Their political humiliation was complete. The
heirs of the great lords who had followed the Conqueror, and who with
their vast estates in Normandy and in England had inherited the arrogant
pretensions of their fathers, found themselves of little account in the
national councils. The mercenary forces were no longer at their disposal.
The sources of wealth which they had found in plunder and in private
coinage were cut off. Their rights of jurisdiction were curtailed. A
final blow was struck at their military power by the adoption of scutage.
In the Welsh campaign of 1157 Henry opened his military reforms by
introducing a system new to England in the formation of his army. Every
two knights bound to service were ordered to furnish in their place one
knight who should remain with the king's army as long as he required. It
was the first step towards getting rid of the cumbrous machinery of the
feudal array, and securing an efficient and manageable force which should
be absolutely at the king's control. In the war of Toulouse in 1159 the
problem was for the first time raised as to the obligation of feudal
vassals to foreign service, and Henry gladly seized the opportunity to
carry out his plan yet more fully. The chief vassals who were unwilling
to join the army were allowed to pay a fixed tax or "scutage" instead of
giving their personal service. Henry, the chroniclers tell us, careful of
his people's prosperity, was anxious not to annoy the knights throughout
the country, nor the men of the rising towns, nor the body of yeomen, by
dragging them to foreign war against their will; at the same time he
himself profited greatly by the change. The new system broke up the old
feudal array, and set the king at the head of something like a standing
army paid by the taxes of the barons.
Henry had, indeed, won a signal victory over feudalism. But feudalism had
no roots on English soil; it was forced to borrow Brabancons, and to work
by means alien to the whole feudal tradition and system, and Henry had
easily overthrown the baronage by the help of the Church. But in the
process the ecclesiastical party had learned to know its strength, and the
king had to meet a more formidable resistance to his will when, instead of
a lawless baronage, he was confronted by the Church with its mighty
organization, always vigilant and menacing. The clergy had from the first
looked with a very jealous eye on his projects. A sharp quarrel as to the
jurisdiction of the ecclesiastical courts had early arisen between Henry
and Archbishop Theobald, but the matter had been compromised for a time.
Thomas had taken office pledged to defend ecclesiastical interests, and he
was so far true to his pledge, that while he was chancellor he put an end
to the abuse of keeping bishoprics and abbeys vacant. He had, however, as
was said at the time, "put off the deacon" to put on the chancellor; and
in an ecclesiastical trial which took place soon after Henry's crowning,
he appears as an energetic exponent of the king's legal views. A dispute
had raged for years as to the jurisdiction of the bishops of Chichester
over the abbots of Battle. On Henry's accession Bishop Hilary of
Chichester vigorously renewed the struggle, and a great trial was held
in May 1157 to decide the matter. Hilary failing after much discussion to
effect a compromise, emphatically and solemnly declared in words such as
Henry was to hear a few years later from another mouth, that there were
two powers, secular and spiritual, and that the secular authority could
not interfere with the spiritual jurisdiction, or depose any bishop or
ecclesiastic without leave from Rome. "True enough, he cannot be
'deposed,'" cried the young king, "but by a shove like this he may be
clean thrust out!" and he suited the action to the words. A laugh ran
round the assembly at the king's jest; but Hilary, taking no notice of
the hint, went on to urge that no layman, not even the king, could by the
law of Rome confer ecclesiastical dignity or exemptions without the Pope's
leave and confirmation. "What next!" broke in Henry angrily, "you think
with your practised cunning to set yourself up against the authority of
my kingly prerogative granted me by God Himself! I command you by the
allegiance you have sworn to keep within proper bounds language against my
crown and dignity!" A general clamour rose against the prelate, and the
chancellor, louder than the rest, talked of the bishop's oath of fealty to
the king, and warned him to take heed to himself. Hilary, seeing himself
thus beset, obsequiously declared that he had no wish to take aught from
the kingly honour and dignity, which he had always bent every effort to
magnify and increase; but Henry bluntly retorted that it was plain to all
that his honour and dignity would be speedily removed far from him by the
fair and deceitful talk of those who would annul his just prerogatives.
The bishop could not find a single friend. Chancellor and justiciar and
constable rivalled one another in taunts and sharp phrases. When he went
on to urge the revision of the Conqueror's charter to Battle by the
archbishop, and to appeal to ecclesiastical custom, Henry's wrath rose
again. "A wonderful and marvellous thing truly is this we hear, that the
charters, forsooth, of my kingly predecessors, confirmed by the
prerogative of the Crown of England, and witnessed by the magnates, should
be deemed beyond our powers by you, my lord bishop. God forbid, God
forbid, that in my kingdom what is decreed by me at the instance of
reason, and with the advice of my archbishops, bishops, and barons,
should be liable to the censure of you and such as you!" He broke short
discussion by declaring that the question belonged to him alone to settle.
The chancellor, in a long argument, crushed the already humbled bishop,
and raised the king's anger to its utmost pitch by drawing attention to
the fact that Hilary had appealed to Rome to the contempt of the royal
dignity. The king, his countenance changed with fury, turned passionately
to the bishop, who tremblingly swore, while Archbishop Theobald crossed
himself in amazement at the audacious perjury, that it was the abbot who
had got the bull of which Thomas complained. Theobald entreated that the
matter might be settled according to Canon law, but this the king promptly
refused. Finally Hilary was forced to complete submission, and the
archbishop prayed that he might be pardoned for any imprudent words he had
used against the king's majesty. Henry was ever ready to yield everything
in form when once he had got his own way. "Not only," he answered, "do I
now give him the kiss of peace, but if his sins were a hundredfold, I
would forgive them all for your prayers and for the love I bear him;" and
bishop and abbot and justiciar, all by the king's orders, joined in the
kiss of peace.