Part 15 (1/2)

In 1175 the two kings crossed together to England, though the young king, who was still listening to the suggestions of France and who professed to be suspicious of his father's intentions, was with some difficulty persuaded to go. He also seems to have been troubled by his father's refusal to receive his homage at the same time with his brothers'; at any rate when he finally joined the king on April 1, he begged with tears for permission to do homage as a mark of his father's love, and Henry consented. At the end of the first week in May they crossed the channel for a longer stay in England than usual, of more than two years, and one that was crowded with work both political and administrative. The king's first act marks the new era of peace with the Church, his attendance at a council of the English Church held at London by Archbishop Richard of Canterbury; and his second was a pilgrimage with his son to the tomb of St. Thomas. Soon after the work of filling long-vacant sees and abbacies was begun. At the same time matters growing out of the insurrection received attention. William, Earl of Gloucester, was compelled to give up Bristol castle which he had kept until now. Those who had been opposed to the king were forbidden to come to court unless ordered to do so by him.

The bearing of arms in England was prohibited by a temporary regulation, and the affairs of Wales were considered in a great council at Gloucester.

One of the few acts of severity which Henry permitted himself after the rebellion seems to have struck friend and foe alike, and suggests a situation of much interest to us which would be likely to give us a good deal of insight into the methods and ideas of the time if we understood it in detail. Unfortunately we are left with only a bare statement of the facts, with no explanation of the circ.u.mstances or of the motives of the king. Apparently at the Whitsuntide court held at Reading on the first day of June, Henry ordered the beginning of a series of prosecutions against high and low, churchmen and laymen alike, for violations of the forest laws committed during the war. At Nottingham, at the beginning of August, these prosecutions were carried further, and there the incident occurred which gives peculiar interest to the proceedings. Richard of Lucy, the king's faithful minister and justiciar, produced before the king his own writ ordering him to proclaim the suspension of the laws in regard to hunting and fis.h.i.+ng during the war. This Richard testified that he had done as he was commanded, and that the defendants trusting to this writ had fearlessly taken the king's venison. We are simply told in addition that this writ and Richard's testimony had no effect against the king's will. It is impossible to doubt that this incident occurred or that such a writ had been sent to the justiciar, but it seems certain that some essential detail of the situation is omitted. To guess what it was is hardly worth while, and we can safely use the facts only as an ill.u.s.tration of the arbitrary power of the Norman and Angevin kings, which on the whole they certainly exercised for the general justice.

From Nottingham the two kings went on to York, where they were met by William of Scotland with the n.o.bles and bishops of his kingdom, prepared to carry out the agreement which was made at Falaise when he was released from imprisonment. Whatever may have been true of earlier instances, the king of Scotland now clearly and beyond the possibility of controversy became the liege-man of the king of England for Scotland and all that pertained to it, and for Galloway as if it were a separate state. The homage was repeated to the young king, saving the allegiance due to the father. According to the English chroniclers all the free tenants of the kingdom of Scotland were also present and did homage in the same way to the two kings for their lands. Some were certainly there, though hardly all; but the statement shows that it was plainly intended to apply to Scotland the Norman law which had been in force in England from the time of the Conquest, by which every va.s.sal became also the king's va.s.sal with an allegiance paramount to all other feudal obligations. The bishops of Scotland as va.s.sals also did homage, and as bishops they swore to be subject to the Church of England to the same extent as their predecessors had been and as they ought to be. The treaty of Falaise was again publicly read and confirmed anew by the seals of William and his brother David. There is nothing to show that King William did not enter into this relations.h.i.+p with every intention of being faithful to it, nor did he endeavour to free himself from it so long as Henry lived. The Norman influence in Scotland was strong and might easily increase. It is quite possible that a succession of kings of England who made that realm and its interests the primary objects of their policy might have created from this beginning a permanent connexion growing constantly closer, and have saved these two nations, related in so many ways, the almost civil wars of later years.

From these ceremonies at York Henry returned to London, and there, before Michaelmas, envoys came to him to announce and to put into legal form another significant addition to his empire, significant certainly of its imposing power though the reasons which led to this particular step are not known to us. These envoys were from Roderick, king of Connaught, who, when Henry was in Ireland, had refused all acknowledgment of him, and they now came to make known his submission. In a great council held at Windsor the new arrangement was put into formal shape. In the doc.u.ment there drawn up Roderick was made to acknowledge himself the liege-man of Henry and to agree to pay a tribute of hides from all Ireland except that part which was directly subject to the English invaders. On his side Henry agreed to recognize Roderick as king under himself as long as he should remain faithful, and also the holdings of all other men who remained in his fealty. Roderick should rule all Ireland outside the English settlement, at least for the purposes of the tribute, and should have the right to claim help from the English in enforcing his authority if it should seem necessary. Such an arrangement would have in all probability only so much force as Roderick might be willing to allow it at any given time, and yet the mere making of it is a sign of considerable progress in Ireland and the promise of more. At the same council Henry appointed a bishop of Waterford, who was sent over with the envoys on their return to be consecrated.

At York the king had gone on with his forest prosecutions, and there as before against clergy as well as laity. Apparently the martyrdom of Archbishop Thomas had secured for the Church nothing in the matter of these offences. The bishops did not interfere to protect the clergy, says one chronicler; and very likely in these cases the Church acknowledged the power rather than the right of the king. At the end of October a papal legate, Cardinal Hugo, arrived in England, but his mission accomplished nothing of importance that we know of, unless it be his agreement that Henry should have the right to try the clergy in his own courts for violations of the forest law. This agreement at any rate excited the especial anger of the monastic chroniclers who wrote him down a limb of Satan, a robber instead of a shepherd, who seeing the wolf coming abandoned his sheep. In a letter to the pope which the legate took with him on his return to Rome, Henry agreed not to bring the clergy in person before his courts except for forest offences and in cases concerning the lay services due from their fiefs. On January 25, 1176, a great council met at Northampton, and there Henry took up again the judicial and administrative reforms which had been interrupted by the conflict with Becket and by the war with his sons.

The task of preserving order in the medieval state was in the main the task of repressing and punis.h.i.+ng crimes of violence. Murder and a.s.sault, robbery and burglary, fill the earliest court records, and on the civil side a large proportion of the cases, like those under the a.s.sizes of Mort d'Ancestor and Novel Disseisin, concerned attacks on property not very different in character. The problem of the ruler in this department of government was so to perfect the judicial machinery and procedure as to protect peaceable citizens from bodily harm and property from violent entry and from fraud closely akin to violence. An additional and immediate incentive to the improvement of the judicial system arose from the income which was derived from fines and confiscations, both heavier and more common punishments for crime than in the modern state. It would be unfair to a king like Henry II, however, to convey the impression that an increase of income was the only, or indeed the main, thing sought in the reform of the courts. Order and security for land and people were always in his mind to be sought for themselves, as a chief part of the duty of a king, and certainly this was the case with his ministers who must have had more to do than he with the determining and perfecting of details.

This is not the place to describe the judicial reforms of the reign in technical minuteness or from the point of view of the student of const.i.tutional history. The activity of a great king, the effect on people and government are the subjects of interest here. The series of formal doc.u.ments in which Henry's reforming efforts are embodied opens with the Const.i.tutions of Clarendon in 1164. Of the king's purpose in this--not new legislation, but an effort to bring the clergy under responsibility to the state for their criminal acts according to the ancient practice,--and of its results, we have already had the story. The second in the series, the a.s.size of Clarendon, the first that concerns the civil judicial system, though we have good reason to suspect that it was not actually Henry's first attempt at reform, dates from early in the year 1166. It dealt with the detection and punishment of crime, and greatly improved the means at the command of the state for these purposes. In 1170, to check the independence of the sheriffs and their abuse of power for private ends, of which there were loud complaints, he ordered strict inquiry to be made, by barons appointed for the purpose, into the conduct of the sheriffs and the abuses complained of, and removed a large number of them, appointing others less subject to the temptations which the local magnate was not likely to resist. This was a blow at the hold of the feudal baronage on the office, and a step in its transformation into a subordinate executive office, which was rapidly going on during the reign. In 1176, in the a.s.size of Northampton, the provisions of the a.s.size of Clarendon for the enforcement of criminal justice were made more severe, and new enactments were added. In 1181 the a.s.size of Arms made it compulsory on knights and freemen alike to keep in their possession weapons proportionate to their income for the defence of king and realm. In 1184 the a.s.size of the Forest enforced the vexatious forest law and decreed severe penalties for its violation. In the year before the king's death, in 1188, the Ordinance of the Saladin t.i.the regulated the collection of this new tax intended to pay the expenses of Henry's proposed crusade.

This list of the formal doc.u.ments in which Henry's reforms were proclaimed is evidence of no slight activity, but it gives, nevertheless, a very imperfect idea of his work as a whole. That was nothing less than to start the judicial organization of the state along the lines it has ever since followed. He did this by going forward with beginnings already made and by opening to general and regular use inst.i.tutions which, so far as we know, had up to this time been only occasionally employed in special cases. The changes which the reign made in the judicial system may be grouped under two heads: the further differentiation and more definite organization of the curia regis and the introduction of the jury in its undeveloped form into the regular procedure of the courts both in civil and criminal cases.

Under the reign of the first Henry we noticed the twofold form of the king's court, the great curia regis, formed by the barons of the whole kingdom and the smaller in practically permanent session, and the latter also acting as a special court for financial cases--the exchequer. Now we have the second Henry establis.h.i.+ng, in 1178, what we may call another small curia regis--apparently of a more professional character--to be in permanent session for the trial of cases. The process of differentiation, beginning in finding a way for the better doing of financial business, now goes a step further, though to the men of that time--if they had thought about it at all--it would have seemed a cla.s.sification of business, not a dividing up of the king's court. The great curia regis, the exchequer, and the permanent trial court, usually meeting at Westminster, were all the same king's court; but a step had really been taken toward a specialized judicial system and an official body of judges.

In the reign of Henry I we also noticed evidence which proved the occasional, and led us to suspect the somewhat regular employment of itinerant justices. This inst.i.tution was put into definite and permanent form by his grandson. The kingdom was at first divided into six circuits, to each of which three justices were sent. Afterwards the number of justices was reduced. These justices, though not all members of the small court at Westminster, were all, it is likely, familiar with its work, and to each circuit at least one justice of the Westminster court was probably always a.s.signed. What they carried into each county of the kingdom as they went the round of their districts was not a new court and not a local court; it was the curia regis itself, and that too in its administrative as well as in its judicial functions indeed it is easy to suspect that it was quite as much the administrative side of its work,--the desire to check the abuses of the sheriffs by investigation on the spot, and to improve the collection of money due to the crown, as its judicial,--as the wish to render the operation of the law more convenient by trying cases in the communities where they arose, that led to the development of this side of the judicial system. Whatever led to it, this is what had begun, a new branch of the judicial organization.

It was in these courts, these king's courts,--the trial court at Westminster and the court of the itinerant justices in the different counties,--that the inst.i.tution began to be put into regular use that has become so characteristic a distinction of the Anglo-Saxon judicial system--the jury. The history of the jury cannot here be told. It is sufficient to say that it existed in the Frankish empire of the early ninth century in a form apparently as highly developed as in the Norman kingdom of the early twelfth. From Charles the Great to Henry II it remained in what was practically a stationary condition. It was only on English soil, and after the impulse given to it by the broader uses in which it was now employed that it began the marvellous development from which our liberty has gained so much. At the beginning it was a process belonging to the sovereign and used solely for his business, or employed for the business of others only by his permission in the special case.

What Henry seems to have done was to generalize this use, to establish certain cla.s.ses of cases in which it might always be employed by his subjects, but in his courts only. In essence it was a process for getting local knowledge to bear on a doubtful question of fact of interest to the government. Ought A to pay a certain tax? The question is usually to be settled by answering another: Have his ancestors before him paid it, or the land which he now holds? The memory of the neighbours can probably determine this, and a certain number of the men likely to know are summoned before the officer representing the king, put on oath, and required to say what they know about it.

In its beginning that is all the jury was. But it was a process of easy application to other questions than those which interested the king. The question of fact that arose in a suit at law--was the land in dispute between A and B actually held by the ancestor of B?--could be settled in the same way by the memory of the neighbours, and in a way much more satisfactory to the party whose cause was just than by an appeal to the judgment of heaven in the wager of battle. If the king would allow the private man the use of this process, he was willing to pay for the privilege. Such privilege had been granted since the Conquest in particular cases. A tendency at least in Normandy had existed before Henry II to render it more regular. This tendency Henry followed in granting the use of the primitive jury generally to his subjects in certain cla.s.ses of cases, to defendants in the Great a.s.size to protect their freehold, to plaintiffs in the three a.s.sizes of Mort d'Ancestor, Novel Disseisin, and Darrein Presentment to protect their threatened seisin. As a process of his own, as a means of preserving order, he again broadened its use in another way in the a.s.size of Clarendon, finding in it a method of bringing local knowledge to the a.s.sistance of the government in the detection of crime, the function of the modern grand jury and its origin as an inst.i.tution.

The result of Henry's activities in this direction--changes we may call them, but hardly innovations, following as they do earlier precedents and lying directly in line with the less conscious tendencies of his predecessors,--this work of Henry's was nothing less than to create our judicial system and to determine the character and direction of its growth to the present day. In the beginning of these three things, of a specialized and official court system, of a national judiciary bringing its influence to bear on every part of the land, and of a most effective process for introducing local knowledge into the trial of cases, Henry had accomplished great results, and the only ones that he directly sought. But two others plainly seen after the lapse of time are of quite equal importance. One of these was the growth at an early date of a national common law.

Almost the only source of medieval law before the fourteenth century was custom, and the strong tendency of customary law was to break into local fragments, each differing in more or less important points from the rest.

Beaumanoir in the thirteenth century laments the fact that every castellany in France had a differing law of its own, and Glanville still earlier makes a similar complaint of England. But the day was rapidly approaching in both lands when the rise of national consciousness under settled governments, and especially the growth of a broader and more active commerce, was to create a strong demand for a uniform national law. What influences affected the forming const.i.tutions of the states of Europe because this demand had to be met by recourse to the imperial law of Rome, the law of a highly centralized absolutism, cannot here be recounted. From these influences, whether large or small, from the necessity of seeking uniformity in any ready-made foreign law, England was saved by the consequences of Henry's action. The king's court rapidly created a body of clear, consistent, and formulated law. The itinerant justice as he went from county to county carried with him this law and made it the law of the entire nation. From these beginnings arose the common law, the product of as high an order of political genius as the const.i.tution itself, and now the law of wider areas and of more millions of men than ever obeyed the law of Rome.

One technical work, at once product and monument of the legal activity of this generation, deserves to be remembered in this connexion, the Treatise on the Laws of England. Ascribed with some probability to Ranulf Glanvill, Henry's chief justiciar during his last years, it was certainly written by some one thoroughly familiar with the law of the time and closely in touch with its enforcement in the king's court. To us it declares what that law was at the opening of its far-reaching history, and in its definiteness and certainty as well as in its arrangement it reveals the great progress that had been made since the law books of the reign of Henry I. That progress continued so rapid that within a hundred years Glanvill's book had become obsolete, but by that time it had been succeeded by others in the long series of great books on our common law.

Nor ought we perhaps entirely to overlook another book, as interesting in its way, the Dialogue of the Exchequer. Written probably by Richard Fitz Neal, of the third generation of that great administration family founded by Roger of Salisbury and restored to office by Henry II, the book gives us a view from within of the financial organization of the reign as enlightening as is Glanvill's treatise on the common law.

But besides the growth of the common law, these reforms involved and carried with them as a second consequence a great change in the machinery of government and in the point of view from which it was regarded. We have already seen how in the feudal state government functions were undifferentiated and were exercised without consciousness of inconsistency by a single organ, the curia regia, in which, as in all public activities, the leading operative element was the feudal baronage.

The changes in the judicial system which were accomplished in the reign of Henry, especially the giving of a more fixed and permanent character to the courts, the development of legal procedure into more complicated and technical forms, and the growth of the law itself in definiteness and body,--these changes meant the necessity of a trained official cla.s.s and the decline of the importance of the purely feudal baronage in the carrying on of government. This was the effect also of the gradual transformation of the sheriff into a more strictly ministerial officer and the diminished value of feudal levies in war as indicated by the extension of scutage. In truth, at a date relatively as early for this transformation as for the growth of a national law, the English state was becoming independent of feudalism. The strong Anglo-Norman monarchy was attacking the feudal baron not merely with the iron hand by which disorder and local independence were repressed, but by finding out better ways of doing the business of government and so destroying practically the whole foundation on which political feudalism rested. Of the threatening results of these reforms the baronage was vaguely conscious, and this feeling enters as no inconsiderable element into the troubles that filled the reign of Henry's youngest son and led to the first step towards const.i.tutional government.

For a moment serious business was now interrupted by a bit of comedy, at least it seems comedy to us, though no doubt it was a matter serious enough to the actors. For many years there had been a succession of bitter disputes between the Archbishops of Canterbury and York over questions of precedence and various ceremonial rights, or to state it more accurately the Archbishops of York had been for a long time trying to enforce an exact equality in such matters with the Archbishops of Canterbury. At mid-Lent, 1776 Cardinal Hugo, the legate, held a council of the English Church in London, and at its opening the dispute led to actual violence. The cardinal took the seat of the presiding officer, and Richard of Canterbury seated himself on his right hand. The Archbishop of York on entering found the seat of honour occupied by his rival, and unwilling to yield, tried to force himself in between Richard and the cardinal. One account says that he sat down in Richard's lap. Instantly there was a tumult. The partisans of Canterbury seized the offending archbishop, bishops we are told even leading the attack, dragged him away, threw him to the floor, and misused him seriously. The legate showed a proper indignation at the disorder caused by the defenders of the rights of Canterbury, but found himself unable to go on with the council.

For a year past the young king had been constantly with his father, kept almost a prisoner, as his immediate household felt and as we may well believe. Now he began to beg permission to go on a pilgrimage to the famous shrine of St. James of Compostella, and Henry at last gave his consent, though he knew the pilgrimage was a mere pretext to escape to the continent. But the younger Henry was detained at Portchester some time, waiting for a fair wind; and Easter coming on, he returned to Winchester, at his father's request, to keep the festival with him. In the meantime, Richard and Geoffrey had landed at Southampton, coming to their father with troubles of their own, and reached Winchester the day before Easter Sunday. Henry and his sons were thus together for the feast, much to his joy we are told; but it is not said that Queen Eleanor, who was then imprisoned in England, very likely in Winchester itself, was allowed any part in the celebration. Richard's visit to England was due to a dangerous insurrection in his duchy, and he had come to ask his father's help. Henry persuaded the young king to postpone his pilgrimage until he should have a.s.sisted his brother to re-establish peace in Aquitaine, and with this understanding they both crossed to the continent about a fortnight after Easter, but young Henry on landing at once set off with his wife to visit the king of France. Richard was now nearly nineteen years old, and in the campaign that followed he displayed great energy and vigour and the skill as a fighter for which he was afterwards so famous, putting down the insurrection almost without a.s.sistance from his brother, who showed very little interest in any troubles but his own. The young king, indeed, seemed to be making ready for a new breach with his father. He was collecting around him King Henry's enemies and those who had helped him in the last war, and was openly displaying his discontent. An incident which occurred at this time ill.u.s.trates his spirit. His vice-chancellor, Adam, who thought he owed much to the elder king, attempted to send him a report of his son's doings; but when he was detected, the young Henry, finding that he could not put him to death as he would have liked to do because the Bishop of Poitiers claimed him as a clerk, ordered him to be sent to imprisonment in Argentan and to be scourged as a traitor in all the towns through which he pa.s.sed on the way.

About the same time an emba.s.sy appeared in England from the Norman court of Sicily to arrange for a marriage between William II of that kingdom and Henry's youngest daughter, Joanna. The marriages of each of Henry's daughters had some influence on the history of England before the death of his youngest son. His eldest daughter Matilda had been married in 1168 to Henry the Lion, head of the house of Guelf in Germany, and his second daughter, Eleanor, to Alphonso III of Castile, in 1169 or 1170. The amba.s.sadors of King William found themselves pleased with the little princess whom they had come to see, and sent back a favourable report, signifying also the consent of King Henry. In the following February she was married and crowned queen at Palermo, being then a little more than twelve years old. Before the close of this year, 1176, Henry arranged for another marriage to provide for his youngest son John, now ten years old.

The infant heiress of Maurienne, to whom he had been years before betrothed, had died soon after, and no other suitable heiress had since been found whose wealth might be given him. The inheritance which his father had now in mind was that of the great Earl Robert of Gloucester, brother and supporter of the Empress Matilda, his father's mother.

Robert's son William had only daughters. Of these two were already married, Mabel to Amaury, Count of Evreux, and Amice to Richard of Clare, Earl of Hertford. Henry undertook to provide for these by pensions on the understanding that all the lands of the earldom should go to John on his marriage with the youngest daughter Isabel. To this plan Earl William agreed. The marriage itself did not take place until after the death of King Henry.

An income suitable for his position had now certainly been secured for the king's youngest son, for in addition to the Gloucester inheritance that of another of the sons of Henry I, Reginald, Earl of Cornwall who had died in 1175, leaving only daughters, was held by Henry for his use, and still earlier the earldom of Nottingham had been a.s.signed him. At this time, however, or very soon after, a new plan suggested itself to his father for conferring upon him a rank and authority proportionate to his brothers'. Ireland was giving more and more promise of shaping itself before long into a fairly well-organized feudal state. If it seems to us a turbulent realm, where a central authority was likely to secure little obedience, we must remember that this was still the twelfth century, the height of the feudal age, and that to the ruler of Aquitaine Ireland might seem to be progressing more rapidly to a condition of what pa.s.sed as settled order than to us. Since his visit to the island, Henry had kept a close watch on the doings of his Norman va.s.sals there and had held them under a firm hand. During the rebellion of 1173 he had had no trouble from them. Indeed, they had served him faithfully in that struggle and had been rewarded for their fidelity. In the interval since the close of the war some advance in the Norman occupation had been made.

There seemed to be a prospect that both the south-west and the north-east--the southern coast of Munster and the eastern coast of Ulster--might be acquired. Limerick had been temporarily occupied, and it was hoped to gain it permanently. Even Connaught had been successfully invaded. Possibly it was the hope of securing himself against attacks of this sort which he may have foreseen that led Roderick of Connaught to acknowledge himself Henry's va.s.sal by formal treaty. If he had any expectation of this sort, he was disappointed; for the invaders of Ireland paid no attention to the new relations.h.i.+p, nor did Henry himself any longer than suited his purpose.

We are now told that Henry had formed the plan of erecting Ireland into a kingdom, and that he had obtained from Alexander III permission to crown whichever of his sons he pleased and to make him king of the island. Very possibly the relations.h.i.+p with Scotland, which he had lately put into exact feudal form, suggested the possibility of another subordinate kingdom and of raising John in this way to an equality with Richard and Geoffrey. At a great council held at Oxford in May, 1177, the preliminary steps were taken towards putting this plan into operation. Some regulation of Irish affairs was necessary. Richard ”Strongbow,” Earl of Pembroke and Lord of Leinster, who had been made justiciar after the rebellion, had died early in 1176, and his successor in office, William Fitz Adelin, had not proved the right man in the place. There were also new conquests to be considered and new homages to be rendered, if the plan of a kingdom was to be carried out. His purpose Henry announced to the council, and the Norman barons, some for the lords.h.i.+ps originally a.s.signed them, some for new ones like Cork and Limerick, did homage in turn to John and to his father, as had been the rule in all similar cases. Hugh of Lacy, Henry's first justiciar, was reappointed to that office, but there was as yet no thought of sending John, who was then eleven years old, to occupy his future kingdom.