Henry the Second - Mrs. J. R. Green
Henry's first step was to send orders to the archbishop to withdraw his
appeal to Rome and his prohibition to the bishops to proceed in the
trial, and to submit to the King's Court in the matter of the chancery
accounts. Secret friends in the Council sent the archbishop strange
warnings. Henry, some said, was planning his death; according to others
the royal officers were laying plots for it secretly, "the king knowing
nothing." A new access of panic seized the bishops. "If he should be
captured or slain what remains to us but to be cast out of our offices
and honours to everlasting shame!" With faces of abject terror they
surrounded Thomas, and the Bishop of Winchester implored him to resign
his see. "The same day and the same hour," he answered, "shall end my
bishopric and my life." "Would to God," cried Hilary, "that thou wert
and shouldst remain only Thomas without any other dignity whatever!"
But Thomas refused all compromise; he had not been summoned to answer
in this cause; he had already suffered against law for men of Kent and
of the sea-border charged with the defence of the coast might be fined
only one-third as much as the inland men; at his consecration, too, he
had been freed from any responsibility incurred as chancellor; he asserted
his right of appeal; and he had meanwhile forbidden the bishops to judge
him in any charge that referred to the time before he was Primate.
Silently the king's messenger returned with his answer. "Behold, we have
heard the blasphemy of prohibition out of his mouth!" cried the barons
and officers, and courtiers turning their heads and throwing sidelong
glances at him, whispered loudly that William who had conquered England,
and even Geoffrey of Anjou, had known how to subdue clerks.
On hearing the message the king at once ordered bishops and barons to
proceed to the trial of the Primate for this new act of contempt of the
King's Court. "In a strait place you have put us," Hilary broke out
bitterly to Thomas, "by your prohibition you have set us between the
hammer and the anvil!" In vain they again entreated Thomas to yield; in
vain they begged the king's leave to sit apart from the barons. Even the
Archbishop of York and Foliot sought anxiously for some escape from
obeying Henry's orders, and at the head of the bishops prayed that they
might themselves appeal to Rome, and thus deal with their own special
grievances against Thomas, who had ordered them to swear and then to
forswear themselves. To this Henry agreed, and from this time the
prelates sat apart, no longer forced to join in the proceedings of the
lay lords; while Henry added to the Council certain sheriffs and lesser
barons "ancient in days." The assembly thus remodelled formally condemned
the archbishop as a traitor, and the earls of Leicester and of Cornwall
were sent to pronounce judgment. But the sentence was never spoken. Thomas
sprang up, cross in hand, and passionately forbade Leicester to speak.
"How can you refuse to obey," said Leicester, "seeing you are the king's
man, and hold your possessions as a fief from him?" "God forbid!" said
Thomas; "I hold nothing whatever of him in fief, for whatever the Church
holds it holds in perpetual liberty, not in subjection to any earthly
sovereignty whatever.... I am your father, you princes of the palace,
lay powers, secular persons; as gold is better than lead, so is the
spiritual better than the lay power.... By my authority I forbid you to
pronounce the sentence." As the nobles retired the archbishop raised his
cross: "I also withdraw," he said, "for the hour is past." Cries of
"Traitor!" followed him down the hall. Knights and barons rushed after him
with bundles of straw and sticks snatched up from the floor, and a clamour
rose "as if the four parts of the city had been given to flames and the
assault of enemies." He made his way slowly through the weeping crowd
outside to the monastery of St. Andrews. That night he fled from
Northampton. The darkness was "as a covering" to him, and a terrible storm
and pelting rain hid the sound of his horse's feet as he passed at
midnight through the town, and out by an unguarded gate to the north. At
dawn of day the anxious Henry of Winchester came to ask for news. "He is
doing well," Thomas's servant whispered in his ear, "for last night he
went away from us, and we do not know whither he has gone." "By the
blessing of God!" cried the bishop, weeping and sighing. When the news was
brought to the king he stood speechless for some moments, choked by his
fury, till at last catching his breath, "We have not done with him yet!"
he exclaimed.
It seemed, indeed, as though the Council of Northampton had brought
nothing but failure and disaster. The king's whole scheme of reform
depended on the ruin or the submission of the Primate, who was its open
and formidable opponent. But Thomas was free and was now more dangerous
than ever. The Church was alarmed, suspicious, perplexed. It was not ten
years since Henry had made his first journey round the kingdom with
Archbishop Theobald at his side, as the king chosen and appointed by the
spiritual power to put down violence and repress a lawless baronage. But
now he could no longer look for the aid of the Church; all dream of
orderly legislation seemed over. Amid all his violence, however, the
king's sincere attempt to maintain the outward authority of law made of
the Council of Northampton a great event in our constitutional history.
It showed that the rule of pure despotism was over. A new step was taken
too in the political education of the nation. Thrown back on the support
of his own officials and of the baronage, Henry used the nobles as he
had once used the Church. Greater and lesser barons sat together in the
King's Council for the first time when Henry summoned sheriffs and
knights from the hall of Northampton Castle to the inner council
chamber. He taught the nobles their strength when he called the whole
assembly of his barons to discuss questions of spiritual jurisdiction.
It was at Northampton that he gave them their first training in political
action--a training whose full results were seen half a century later in
the winning of Magna Charta.
CHAPTER VI
THE ASSIZE OF CLARENDON
The flight of the archbishop marked the opening of a new phase in the
struggle. Thomas sought refuge at the Papal Court at Sens. There
kneeling at Alexander's feet, and surrounded by weeping cardinals, he
delivered into the Pope's hands the written "customs" which had been
forced upon him at Clarendon, and resigned the see of Canterbury to
receive it back again with all honour. Alexander had indeed but limited
sympathy with the fiery zealot, but he had practically no choice of
action in face of the resistance with which the clergy would have met
any sacrifice of ecclesiastical to secular authority. For two years at a
monastery in Pontigny then for four at Sens, the archbishop lived the
life of an austere Cistercian monk, edifying the community with his
fastings, scourgings, and prayers. The canon law again became his
constant study, and throughout the churches of Gaul he sought for books
which might be copied for the library at Canterbury. He was soon
fortified with visions of martyrdom, and prepared himself fitly to
fulfil this glorious destiny. Nor did he forget the uses of political
intrigue; it was easy to enlist on his side the orthodoxy of the French
king and of the house of Blois; and the intimate knowledge which he had
of his master's continental policy was henceforth at the disposal of the
hereditary enemies of Henry. A tumult of political alarms filled the
air. Ambassadors from both sides hurried to every court, to the Emperor,
the Pope, the King of France, the Count of Flanders, the Empress Matilda
at Rouen. It was the beginning of six years of incessant diplomatic
intrigue, and of almost ceaseless war. The conflict, transferred from
England to France, rapidly widened into a strife, not now for the
maintenance of the king's authority in England, but for his actual
supremacy over the whole empire. Instead of the great questions of
principle which had given dignity to the earlier stages of the dispute,
the quarrel sank into a bitter personal wrangle, an ignoble strife which
left to later generations no great example, no fruitful precedent, no
victory won for liberty or order, for Church or State.
The Constitutions of Clarendon two years before had lain down the
principles which were to regulate the relations in England of Church and
State. The Assize of Clarendon laid down the principles on which the
administration of justice was to be carried out. Just as Henry had
undertaken to bring Church courts and Church law under the king's
control, so now he aimed at bringing all local and rival jurisdictions
whatever into the same obedience. In form the new law was simple enough.
It consisted of twenty-two articles which were drawn up for the use of
the judges who were about to make their circuits of the provinces. The
first articles described the manner in which criminals were to be
"presented" before the justices or sheriff. The accusation was to be
made by "juries," composed of twelve men of the hundred and four men of
the township; the "presentment" of a criminal by a jury such as this
practically implied that the man was held guilty by the public report of
his own neighbourhood, and he was therefore forbidden such chance of
escape as compurgation or the less dangerous forms of ordeal might have
afforded, and was sent to the almost certain condemnation of the ordeal
by water; if by some rare fortune he should escape from this alive he
was banished from the kingdom as a man of evil reputation. All freemen
were ordered to attend the courts held by the justices. The judges were
given power to enter on all estates of the nobles, to see that the men
of the manor were duly enrolled under the system of "frank-pledge," in
groups of ten men bound to answer for one another as "pledges" for all
purposes of police. Strict rules were made to prevent the possible
escape of criminals. The sheriffs were ordered to aid one another in
carrying the hue and cry after them from one country to another; no
"liberty" or "honour" might harbour a malefactor against the king's
officers; sheriffs were to give to the justices in writing the names of
all fugitives, so that they might be sought through all England;
everywhere jails, in which doubtful strangers or suspected rogues might
be shut up for safe keeping in case the "hue and cry" should be raised
after them, were to be made or repaired with wood from the king's or the
nearest landowner's domains; no man might entertain a stranger for whom
he would not be answerable before the justices; the old English law was
again repeated in the very words of ancient times, that none might take
into his house a waif or wanderer for more than one night unless he or
his horse were sick; and if he tarried longer he must be kept until he
were redeemed by his lord or could give safe pledges; no religious house
might receive any of the mean people into their body without good
testimony as to character unless he were sick unto death; and heretics
were to be treated as outlaws. These last indeed were not very plentiful
in England, and the over-anxious legislators seem only to have had in
view a little band of German preachers, who had converted one woman, and
who had themselves at a late council at Oxford been branded, flogged,
and driven out half-naked, so that there was by this time probably not
one who had not perished in the cold.
Such was the series of regulations that opened the long course of
reforms by which English law has been built up. Two judges were sent
during the next spring and summer through the whole of England. The
following year there was a survey of the forests, and in 1168 another
circuit of the shires was made by the barons of the Exchequer. Year by
year with unbroken regularity the terrible visitation of the country by
the justices went on. The wealth of the luckless people poured into the
king's treasury; the busy secretaries recorded in the Rolls a mass of
profits unknown to the accounts of earlier days. The great barons who
presided over the Shire courts found themselves practically robbed of
power and influence. The ordinary courts fell into insignificance beside
those summoned by the king's judges, thronged as they were with the
crowd of rich and poor, trembling at the penalty of a ruinous fine for
non-attendance or full of a newly-kindled hope of justice. Important
cases were more and more withdrawn from the sheriffs and given to the
justices. They entered the estates of the nobles, even the franchises,
liberties, and manors which had been freed from the old courts of the
shire or hundred; they reviewed their decisions and interfered with their
judgments. It is true that the system established in principle was but
gradually carried into effect, and the people long suffered the tyranny
of lords who maintained their own prisons. Half a century later we find
sturdy barons setting up their tumbrils and gallows. In the reign of
Edward I. there were still thirty-five private gallows in Berkshire
alone, and when one of them was by chance or age broken down, and the
people refused to set it up again, the baron could still make shift with
the nearest oak. But as a system of government, feudalism was doomed from
the day of Henry's Assize, and only dragged out a lingering existence
till the legislation of Edward I. dealt it a final blow.
The duties of police were at that time performed by the whole population,
and the judges' circuits brought home sharply to every man the part he
was expected to play in the suppression of crime. Juries were fined if
they had not "presented" a due amount of criminals; townships were fined
if they had not properly pursued malefactors; villages were fined if a hut
was burned down and the hue and cry was not raised, or if a criminal who
had fled for refuge to their church escaped from it. A robber or murderer
must be paid for by his "pledge," or if he had no pledge, a fine fell on
his village or township; if a dead body were found and the slayer not
produced, the hundred must pay for him, unless a legal form, called
"proving his Englishry," could be gone through--a condition which was
constantly impossible; the township was fined if the body had been buried
before the coming of the coroner; abbot or knight or householder was
heavily taxed for every crime of serf or hired servant under him, or even
for the offences of any starving and worn-out pilgrim or traveller to
whom he had given a three days' shelter.. In the remotest regions of the
country barons and knights and freeholders were called to aid in carrying
out the law. The "jurors" must be ready at the judges' summons wherever
and whenever they were wanted. They must be prepared to answer fully for
their district; they must expect to be called on all sorts of excuses to
Westminster itself, and no hardships of the journey from the farthest
corner of the land might keep them back. The "knights of the shire" were
summoned as "recognitors" to give their testimony in all questions of
property, public privilege, rights of trade, local liberties, exemption
from taxes; if the king demanded an "aid" for the marriage of his daughter
or the coming of age of his son, they assessed the amount to be paid; if
he wanted to count an estate among the royal Forests, it was they who
decided whether the land was his by ancient right. They were employed
too in all kinds of business for the Court; they might be sent to
examine a criminal who had fled to the refuge of a church, or to see
whether a sick man had appointed an attorney, or whether a litigant who
pleaded illness was really in bed without his breeches. If in any case
the verdict of the Shire Court was disputed, they were summoned to
Westminster to repeat the record of the county. No people probably ever
went through so severe a discipline or received so efficient a training
in the practical work of carrying out the law, as was given to the
English people in the hundred years that lay between the Assize of
Clarendon in 1166 and the Parliament summoned by De Montfort in 1265,
where knights from every shire elected in the county court were called
to sit with the bishops and great barons in the common Parliament of the
realm.
In the pitiless routine of their work, however, the barons of the
Exchequer were at this early time scarcely regarded as judges administering
justice so much as tax-gatherers for a needy treasury. Baron and churchman
and burgher alike saw every question turn to a demand of money to swell
the royal Hoard; jurors were fined for any trifling flaw in legal
procedure; widows were fined for leave to marry, guardians for leave to
receive their wards; if a peasant were kicked by his horse, if in fishing
he fell from the side of his boat, or if in carrying home his eels or
herrings he stumbled and was crushed by the cart-wheel, his wretched
children saw horse or boat or cart with its load of fish which in older
days had been forfeited as "deodand" to the service of God, now carried
off to the king's Hoard; if a miller was caught in the wheel of his mill
the sheriff must see the price of it paid to the royal treasury. In the
country districts where coin was perhaps scarcely ever seen, where
wages were unknown, and such little traffic as went on was wholly a
matter of barter, the peasants must often have been put to the greatest
straits to find money for the fines. Year after year baron as well as
peasant and farmer saw his waggons and horses, or his store of honey,
eggs, loaves, beer, the fish from his pond or the fowls from his yard,
claimed by the purveyors who provided for the judges and their followers,
and paid for by such measures and such prices as seemed good to the greedy
contractors. The people at large groaned under the heavy burden of fines
and penalties and charges for the maintenance of an unaccustomed justice.
When in the visitations of 1168 the judges had to collect, besides the
ordinary dues, an "aid" for the marriage of the king's eldest daughter,
the unhappy tax-payers, recognizing in their misery no distinctions,
attributed all their sufferings to the new reform, and saw in their king
not a ruler who desired righteous judgment, but one who only thirsted
after gain. The one privilege which seemed worth fighting for or worth
buying was the privilege of assessing their own fines and managing their
own courts. Half a century later we see the prevailing terror at a visit
of the judges to Cornwall, when all the people fled for refuge to the
woods, and could hardly be compelled or persuaded to come back again.
Yet later the people won a concession that in time of war no circuits
should be held, so that the poor should not be utterly ruined.
Oppression and extortion had doubtless been well known before, when the
sheriff carried on the administration of the law side by side with the
lucrative business of "farming the shires;" but it was at least an
irregular and uncertain oppression. The sheriff might himself at any
moment share the fate of one of his own victims and a more merciful man
stand in his place; in any case bribes were not unavailing, and there
was still an appeal to the king's justice. But against the new system
there was no appeal; it was orderly, methodical, unrelenting; it was
backed by the whole force of the kingdom; it overlooked nothing; it
forgot nothing; it was comparatively incorruptible. The lesser courts,
with their old clumsy procedure, were at a hopeless disadvantage before
the professional judges, who could use all the new legal methods. If a
man suffered under these there was none to plead his cause, for in all
the country there was not a single trained lawyer save those in the
king's service. However we who look back from the safe distance of seven
hundred years may see with clearer vision the great work which was done
by Henry's Assize, in its own day it was far from being a welcome
institution to our unhappy forefathers. There was scarcely a class in
the country which did not find itself aggrieved as the king waged war
with the claims of "privilege" to stand above right and justice and truth.
But all resistance of turbulent and discontented factions was vain.
The great justiciars at the head of the legal administration, De
Lucy and Glanville, steadily carried out the new code, and a body of
lawyers was trained under them which formed a class wholly unknown
elsewhere in Europe. Instead of arbitrary and inflicting decisions,
varying in every hundred and every franchise according to the fashion of
the district, the judges of the Exchequer or Curia Regis declared
judgments which were governed by certain general principles. The
traditions of the great administrators of Henry's Court were handed down
through the troubled reigns of his sons; and the whole of the later
Common law is practically based on the decisions of two judges whose
work was finished within fifty years of Henry's death, and whose labours
formed the materials from which in 1260 Bracton drew up the greatest
work ever written on English law.
There was, in fact, in all Christendom no such system of government or
of justice as that which Henry's reforms built up. The king became the
fountain of law in a way till then unknown. The later jealousy of the
royal power which grew up with the advance of industrial activity, with
the growth of public opinion and of its means of expressing itself, with
the development of national experience and national self-dependence, had
no place in Henry's days, and had indeed no reason for existence. The
strife for the abolition of privileges which in the nineteenth century
was waged by the people was in the twelfth century waged by the Crown.
In that time, if in no other, the assertion of the supreme authority of
the king meant the assertion of the supreme authority of a common law;
and there was, in fact, no country in Europe where the whole body of the
baronage and of the clergy was so early and so completely brought into
bondage to the law of the land. Since all courts were royal courts,
since all law was royal law, since no justice was known but his, and its
conduct lay wholly in the hands of his trained servants, there was no
reason for the king to look with jealousy on the authority exercised by
the law over any of his officers or servants. It may possibly be due to
this fact that in England alone, of all countries in the world, the
police, the civil servants, the soldiers, are tried in the same courts
and by the same code as any private citizen; and that in England and
lands settled by English peoples alone the Common law still remains the
ultimate and only appeal for every subject of the realm.
But the power which was taken from certain privileged classes and put in
the hands of the king was in effect by Henry's Assize given back to the
people at large. Foreigner as he was, Henry preserved to Englishmen an
inheritance which had been handed down from an immemorial past, and
which had elsewhere vanished away or was slipping fast into forgetfulness.
According to the Roman system, which in the next century spread over
Europe, all law and government proceeded directly from the king, and the
subject had no right save that of implicit obedience; the system of
representation and the idea of the jury had no place in it. Teutonic
tradition, on the other hand, looked upon the nation as a commonwealth,
and placed the ultimate authority in the will of the whole people; the
law was the people's law--it was to be declared and carried out in the
people's courts. At a very critical moment, when everything was shifting,
uncertain, transitional, Henry's legislation established this tradition
for England. By his Assize Englishmen were still to be tried in their
ancient courts. Justice was to be administered by the ancient machinery
of shire-moot and hundred-moot, by the legal men of hundred and township,
by the lord and his steward. The shire-moot became the king's court in
so far as its president was a king's judge and its procedure regulated
by the king's decree; but it still remained the court of the people, to
which the freemen gathered as their fathers had done to the folk-moot,
and where judgment could only be pronounced by the verdict of the
freeholders who sat in the court. The king's action indeed was determined
by a curious medley of chance circumstances and rooted prejudices. The
canon law was fast spreading over his foreign states, and wherever the
canon law came in the civil law followed in its train. But in England
local liberties were strong, the feudal system had never been completely
established, insular prejudice against the foreigner and foreign ways was
alert, the Church generally still held to national tradition, the king
was at deadly feud with the Primate, and was quite resolved to have no
customs favoured by him brought into the land; his own absolute power
made it no humiliation to accept the maxim of English lawyers that "the
king is under God and the law." So it happened that while all the other
civilized nations quietly passed under the rule of the Roman code England
alone stood outside it. From the twelfth century to the present day the
groundwork of our law has been English, in spite of the ceaseless
filtering in of the conceptions and rules of the civil law of Rome.
"Throughout the world at this moment there is no body of ten thousand
Englishmen governed by a system of law which was not fashioned by
themselves."