Henry the Second

by Alice Stopford Green

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 Brabançons, 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.

But no kiss of peace given at Henry's orders could turn away the rising wrath of the Church. A general feeling of danger was in the air, and both sides, in preparing for the inevitable future, chose the same man to fight their battle,—Thomas, the disciple and secretary of Theobald, Thomas, the minister of the king's reforms. The young king had turned with passionate affection to his brilliant chancellor. In hall, in church, in council-chamber, on horseback, he was never separated from his friend. Thomas, like his master, was always ready for hunting, or for hawking, or for a game of chess. He was willing, too, to save the king the cost and burden of entertainment and display. He was careful to magnify his office. He held a splendid court, where Henry's son and a train of young nobles were brought up to knightly accomplishments. He was dressed in scarlet and furs, and his clothes were woven with gold. His table was covered with gold and silver plate, and his servants had orders to buy the most costly provisions in the shops for cooked meat, which were then the glory of the city. His household was the talk of London. The king himself, curious to see how things went on, would sometimes come on horseback to watch the chancellor sitting at meat, or, bow in hand, would turn in on his way from hunting, and, vaulting over the table, would sit down and eat with him. Henry lavished gifts on him, so that according to one of his chroniclers, "when he might have had all the churches and castles of the kingdom if he chose since there was none to deny him, yet the greatness of his soul conquered his ambition; he magnanimously disdained to take the poorer benefices, and required only the great things—the provostship of Beverley, the deanery at Hastings, the Tower of London with the service of the soldiers belonging to it, the castle of Eye with 140 soldiers, and that of Berkhampstead." or was the king's favour misplaced, for Thomas was an excellent servant. Business was rapidly despatched by him; and Henry found himself relieved of the most irksome part of his work. The chancellor surrounded himself by able men, looking even as far as Gaul for poor Englishmen who were distinguished for their talent; fifty-two clerks were employed under him in the Chancery. As he grew more and more important to his master, unlimited powers were put in his hand. There are even entries in the Pipe Roll of pardons issued by him, the first instance of such a right ever used by any save king or queen. It was said that those who had the king's favour might count it as a vain thing, unless they had also the friendship of the chancellor. "The king's dominions, which reach from the Arctic Ocean to the Pyrenees, he put into your power, and in this alone was any man thought happy, that he should find favour in your eyes," runs a letter written afterwards to Thomas.

To complete the king's schemes, however, one dignity yet remained to be conferred on Thomas. He was eager, in view of his proposed reconstruction of Church and State, to adopt the Imperial system of a chancellor-archbishop. The difficulties in the way were great, for ancient custom limited the technical supremacy of the king's will in the choice of the Primate. No archbishop since the Conquest had been chosen for other reasons than those of piety and learning; no secular primate had been appointed since Stigand, and before Stigand there had never been one at all; no deacon had ever been chosen for this high office; and never had a king's officer been made archbishop, however common it may have been to put chancellor or treasurer in less important sees. Amid the anxiety and questioning which followed the death of Theobald in 1161, Thomas himself clearly saw the parting of the ways: "Whoever is made archbishop," he said, "must quickly give offence to God or to the king." Henry alone knew no hesitation. Fresh from his triumphs abroad, master of his great empire, clear and decided in his projects for the ordering of his dominions, eager with the force and determination of twenty-eight years, recognizing no check to his imperious will and the dictates of his friendship, he chose Thomas as archbishop, "Matilda dissuading, the kingdom protesting, the whole Church sighing and groaning." The king, who was then in France, sent his envoy, Richard de Lucy, to Canterbury to press the essential problem home in plain words: "If," he said, "the king and the archbishop are joined together in affection, the state of the Church will still be quiet and happy; but if the thing should fall out otherwise, what strife may come from it, what difficulties and tumults, what loss and peril to souls, I cannot hide from you." The argument prevailed, and in London, in the presence of the king's little son Henry, then seven years old, Thomas was chosen archbishop, "the multitude acclaiming with the voice of God and not of man." The deacon-chancellor was ordained priest on the 2d of June 1162, and the next day consecrated archbishop by Henry of Winchester. Two months later John of Salisbury brought him the pall from Pope Alexander at Montpellier, and for the first time since the Norman Conquest, a man born on English soil was set at the head of the English Church.

CHAPTER V

THE CONSTITUTIONS OF CLARENDON

In the January of 1163 Henry once more landed in England. His absence off our and a half years had given time for dangers and alarms to spring up in the half-settled realm. Mysterious prophecies passed from mouth to mouth that the king would never be seen in the island again, and even Theobald, before his death in 1161, had sent urgent entreaties for his return. The king had, in fact, during the first eight years of his rule been mainly occupied in building up his empire, and providing for its defence against external dangers. He had only twice visited the kingdom, each time for little more than a year. He was now, however, prepared to take the work of administration seriously in hand. In the next eighteen years, from 1163 to 1180, he landed on its shores seven times, and spent altogether eight years in the country. Once he was busied with the conquest of Ireland; one visit of a month was spent in crushing a dangerous rebellion; but with these two exceptions every coming of the king was marked by the carrying out of some great administrative reform. In his half-compacted empire order was still only maintained by his actual presence and the sheer force of his personal authority, as he hurried from country to country to quell a rising in Gascony or a revolt in Galloway, to wage war in Wales, to finish the conquest of Britanny or of Ireland, to order the administration of Poitou or Normandy. But in the swift and terrible progresses of a king who visited the shires to north and south and west in the intervals of foreign war, a long series of experiments as to the best forms of internal government was ceaselessly carried out, and the new administration securely established.

Henry, however, was at once met by a difficulty unknown to earlier days. The system which the Conqueror had established of separate courts for secular and ecclesiastical business had utterly broken down for purposes of justice. Until the reign of Stephen much of the business of the bishops was done in the courts of the hundred and the shire. The Church courts also had at first been guided by the customary law and traditions of the early English Church, which had grown up along with the secular laws and had a distinctly national character. So long, indeed, as the canon law remained somewhat vague, and the Church courts incomplete, they could work peaceably side by side with the lay courts; but with the development of ecclesiastical law in the middle of the twelfth century, it was inevitable that difficulties should spring up. The boundaries of civil and ecclesiastical law were wholly uncertain, the scientific study of law had hardly begun, and there was much debatable ground which might be won by the most arrogant or the most skilful of the combatants. Every brawl of a few noisy lads in the Oxford streets or at the gates of some cathedral or monastic school was enough to kindle the strife as to the jurisdiction of Church or State which shook medieval society to its foundation.