Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

In one of these battles Stephen was taken, and Maud was universally acknowledged; but her insufferable haughtiness, her inflexible severity to her captive, and her haughty refusal of the city of London’s request, to mitigate her father’s laws, and restore the Saxon, so alienated the people from her, that she was forced to fly from London, and arms were again taken up for Stephen. Her brother, who was the soul of her cause, being soon after taken prisoner, was exchanged for Stephen, and he dying soon after, Maud was forced to leave the kingdom to her competitor. However, Stephen continuing still embroiled with the clergy, her son Henry, in a few years after, invaded England, and was joined by multitudes; but some noblemen, who loved their country, mediated a peace, and at last established it on the following terms; that Stephen should reign during life; that Henry should succeed him, and receive hostages at the present for the delivery of the king’s castles to him on Stephen’s death; and that, in the interim, he should be consulted with on all the great affairs of the kingdom; and this agreement was ratified by the oaths of all the nobility of both sides. In this treaty no mention was made of Maud’s title, though she was living[347].

LECTURE XXXI.

Henry II. succeeds to the crown—The reformation of abuses—Alterations introduced into the English Law—The commutation of services into money—Escuage or Scutage—Reliefs—Assizes of novel disseisin, and other assizes.

Upon Stephen’s death, Henry the Second succeeded, according to the settlement of the crown before made, and came to the possession of the kingdom with greater advantages than most kings ever did. He was in the flower of youth, had an agreeable person, and had already given the most convincing proofs both of wisdom and valour. He was by far the most powerful prince of his time: For, besides England, which when united to its king in affection, was, by the greatness of its royal demesnes, and the number of knights fees, incomparably the mightiest state in Europe, in proportion to its extent; he had in France, where he was but a vassal, greater territories than the king of France himself. In him were united three great fees, to each of which belonged several great dependancies; Anjou, which came from his father; Normandy from his mother, and Guienne by his wife. And, from the very first steps he took on coming to the throne, his subjects had good foundation to hope that this great power would be principally exerted to make them happy. The whole reign of Stephen, until the last pacification, had been a scene of dismal confusion, in which every lord of a castle tyrannized at pleasure, during the competition for the crown; and though, from the time of the settlement of peace, Stephen published edicts to restrain violence and rapine, and made a progress through the kingdom, in order to re-establish justice and order, he lived not long enough to see his good intentions answered, but left the work to be accomplished by his successor.

The first thing Henry did was to discharge a multitude of foreigners, whom Stephen kept in arms during his whole reign. His next care was the reformation of the coin, which had been greatly debased. He coined money of the due weight and fineness, and then cried down the adulterated which had, in the late reign, been counterfeited by the Jews, and the many petty tyrants in their castles. These to humble, and make amesnable to law, was his next concern. As to the castles in private hands, that had been erected in his grandfather’s time, or before, he meddled not with them; but all that had been built during Stephen’s reign, either by permission or connivance, through the weakness of that prince, which were the great nuisances, he issued a proclamation for demolishing, except some few, which, from their convenient situation, he chose to keep in his own hands, for the defence of the realm. And, lastly, as the crown had been greatly impoverished by the alienations Stephen had, through necessity, been forced to make, he issued another, to renounce all the antient demesnes that had been so alienated, that he might be enabled to support his dignity without loading his people, except on extraordinary occasions[348].

These reformations, however just in themselves, or agreeable to the subject, he did not proceed on merely by his own authority. He had deliberated with the nobles, who attended at his coronation, concerning them, and had their approbation; and though there were no acts of parliament made at that time, yet, as form in those days was less minded than substance, these edicts had the obedience of laws immediately paid them by all, except some mutinous noblemen, who still held their castles in a state of defence. Having taken these prudent steps, he formed his privy council of the best and wisest men of the nation, and by their advice summoned a regular parliament, wherein many good regulations were made. The laws of the Confessor, as amended by Henry the First, were re-established, and every thing, both in church and state, settled on the footing they were in the time of that king. Being thus armed with a full parliamentary authority, he marched against his mutinous nobles, whom he soon brought to submit; and demolished their castles.

In another parliament, in order to settle the succession, contests about which had had fatal effects ever since the death of the Conqueror, he prevailed on his subjects to take the oath of allegiance, to his two sons, though both in their infancy, first to William, then, to Henry, as his successors. And having taken all these wise and just measures, for the peace and security of his kingdom, he repaired to his foreign dominions; but his transactions there, or even at home, that do not relate to the laws or constitution, are not within the compass of the design of these lectures. Let it suffice to say, that he made as good laws for, and was as good a sovereign to, his French as his English subjects.

In his reign many were the alterations introduced into the English law, most of them, no doubt, by act of parliament, though the records of them are lost. For, in the beginning of his reign, as I observed, he enacted in parliament the laws of Henry the First; and yet from the book of Glanville, written in the latter end of his reign, it is plain there were great changes, and the law was very much brought back to what it was in the Conqueror’s reign; nay, in one respect, to what it was in Rufus’s, I mean reliefs, the law of which I shall mention hereafter. Many likewise were the regulations he introduced of his own authority, which in the event proved very beneficial to his subjects.

The first I shall take notice of was his commutation of the services due of his tenants in demesne, which formerly were paid in provisions and other necessaries, into a certain sum of money, adequate to the then usual price. His grandfather Henry did somewhat of this kind, but he it was that established and fixed it; and his example was followed by his lords, so that, from this time, rents became generally paid in certain yearly sums of money, instead of corn and provisions. What advantage the successors of these socage tenants gained thereby will be evident, if we consider the price of things at or about that time. In the reign of Henry the First, we are told, the current price of several commodities, which, however, must be trebled when reduced to the money of our standard, were as follows: That of a fat ox five shillings, of our money fifteen; a wether four-pence, of ours, a shilling; wheat to serve an hundred men with bread for one meal, a shilling, of ours, three shillings; a ration for twenty horses for a day, four-pence, of our money a shilling. And although we should allow that, in Henry the Second’s time, the prices of things were even doubled, which is impossible to be admitted, it is easy to see how greatly the future socage tenants paying the same nominal rent, the value of which was daily decreasing, rose in wealth and importance. Besides, they were greatly eased in point of the expence and trouble of carrying the provisions to the king’s court, to which before they were obliged, wherever he resided in England; whereas, now, they had only to carry, or send by a proper messenger, the money to be accepted as an equivalent[349].