All advances towards reason and good sense are slow and gradual. Henry, though sensible of the great absurdity attending the trial by duel or battle, did not venture to abolish it: he only admitted either of the parties to challenge a trial by an assize or jury of twelve freeholders.[*****]
[* Some Scotch historians pretend, that William
paid, besides, one hundred thousand pounds of ransom, which
is quite incredible. The ransom of Richard I., who, besides
England, possessed so many rich territories in France, was
only one hundred and fifty thousand marks, and yet was
levied with great difficulty. Indeed, two thirds of it only
could be paid before his deliverance.]
[** Benedict. Abbas, p. 132. Hoveden, p. 549.]
[*** Seldeni Spicileg. ad Eadm. p. 204,]
[**** Benedict. Abbas, p. 132.]
This latter method of trial seems to have been very ancient in England, and was fixed by the laws of King Alfred: but the barbarous and violent genius of the age had of late given more credit to the trial by battle, which had become the general method of deciding all important controversies. It was never abolished by law in England; and there is an instance of it so late as the reign of Elizabeth: but the institution revived by this king, being found more reasonable and more suitable to a civilized people, gradually prevailed over it.
The partition of England into four divisions, and the appointment of itinerant justices to go the circuit in each division, and to decide the causes in the counties, was another important ordinance of this prince, which had a direct tendency to curb the oppressive barons, and to protect the inferior gentry and common people in their property.[*] Those justices were either prelates or considerable noblemen; who, besides carrying the authority of the king’s commission, were able, by the dignity of their own character, to give weight and credit to the laws.
That there might be fewer obstacles to the execution of justice, the king was vigilant in demolishing all the new erected castles of the nobility, in England as well as in his foreign dominions; and he permitted no fortress to remain in the custody of those whom he found reason to suspect.[**]
But lest the kingdom should be weakened by this demolition of the fortresses, the king fixed an assize of arms, by which all his subjects were obliged to put themselves in a situation for defending themselves and the realm. Every man possessed of a knight’s fee was ordained to have for each fee, a coat of mail, a helmet, a shield, and a lance; every free layman, possessed of goods to the value of sixteen marks, was to be armed in like manner; every one that possessed ten marks was obliged to have an iron gorget, a cap of iron, and a lance; all burgesses were to have a cap of iron, a lance, and a wambais; that is, a coat quilted with wool, tow, or such like materials.[***] It appears that archery, for which the English were afterwards so renowned, had not at this time become very common among them. The spear was the chief weapon employed in battle.
[* Hoveden, p. 590].
[** Benedict. Abbas, p. 202. Diceto p. 585.]
[*** Benedict, Abbas, p. 305. Annal. Waverl. p.
181.]
The clergy and the laity were, during that age, in a strange situation with regard to each other, and such as may seem totally incompatible with a civilized, and indeed with any species of government. If a clergyman were guilty of murder, he could be punished by degradation only: if he were murdered, the murderer was exposed to nothing but excommunication and ecclesiastical censures; and the crime was atoned for by penances and submission.[*] Hence the assassins of Thomas à Becket himself, though guilty of the most atrocious wickedness, and the most repugnant to the sentiments of that age, lived securely in their own houses, without being called to account by Henry himself, who was so much concerned, both in honor and interest, to punish that crime, and who professed or affected, on all occasions, the most extreme abhorrence of it. It was not till they found their presence shunned by every one as excommunicated persons, that they were induced to take a journey to Rome, to throw themselves at the feet of the pontiff, and to submit to the penances imposed upon them; after which, they continued to possess without molestation their honors and fortunes, and seem even to have recovered the countenance and good opinion of the public. But as the king, by the constitutions of Clarendon, which he endeavored still to maintain,[**] had subjected the clergy to a trial by the civil magistrate, it seemed but just to give them the protection of that power, to which they owed obedience: it was enacted, that the murderers of clergymen should be tried before the justiciary, in the presence of the bishop or his official; and besides the usual punishment for murder, should be subjected to a forfeiture of their estates, and a confiscation of their goods and chattels.[***]
[* Petri Bles. epist. 73, apud Bibl. Patr. torn.
xxiv. p. 992.]
[** Gervase, p. 1433. ]
[*** Diceto, p. 592. Gervase, p. 1433]
The king passed an equitable law, that the goods of a vassal should not be seized for the debt of his lord, unless the vassal be surety for the debt; and that the rents of vassals should be paid to the creditors of the lord, not to the lord himself. It is remarkable, that this law was enacted by the king in a council which he held at Verneuil, and which consisted of some prelates and barons of England, as well as some of Normandy, Poictou, Anjou, Maine, Touraine, and Brittany and the statute took place in all these last-mentioned territories,[*] though totally unconnected with each other;[**] a certain proof how irregular the ancient feudal government was, and how near the sovereigns, in some instances, approached to despotism, though in others they seemed scarcely to possess any authority. If a prince, much dreaded and revered like Henry, obtained but the appearance of general consent to an ordinance which was equitable and just, it became immediately an established law, and all his subjects acquiesced in it, If the prince was hated or despised; if the nobles, who supported him, had small influence; if the humors of the times disposed the people to question the justice of his ordinance; the fullest and most authentic assembly had no authority. Thus all was confusion and disorder; no regular idea of a constitution; force and violence decided every thing.