CHAPTER IV.
HENRY AND THE BARONS.
1166–1175.

For the last eight years Henry had been literally, throughout his English realm, over all persons and all causes supreme. From the hour of Thomas’s flight, not a hand, not a voice was lifted to oppose or to question his will; England lay passive before him; the time seemed to have come when he might work out at leisure and without fear of check his long-cherished plans of legal, judicial and administrative reform. In the execution of those plans, however, he was seriously hampered by the indirect consequences of the ecclesiastical quarrel. One of these was his own prolonged absence from England, which was made necessary by the hostility of France, and which compelled him to be content with setting his reforms in operation and then leave their working to other hands and other heads, without the power of superintending it and watching its effects with his own eyes, during nearly six years. He had now to learn that the enemy with whom he had been striving throughout those years was after all not the most serious obstacle in his way;—that the most threatening danger to his scheme of government still lay, as it had lain at his accession, in that temper of the baronage which it had been his first kingly task to bring under subjection. The victory which he had gained over Hugh Bigod in 1156 was real, but it was not final. The spirit of feudal insubordination was checked, not crushed; it was only waiting an opportunity to lift its head once more; and with the strife that raged around S. Thomas of Canterbury the opportunity came.

Henry’s attitude towards the barons during these years had been of necessity a somewhat inconsistent one. He never lost sight of the main thread of policy which he had inherited from his grandfather: a policy which may be defined as the consolidation of kingly power in his own hands, through the repression of the feudal nobles and the raising of the people at large into a condition of greater security and prosperity, and of closer connexion with and dependence upon the Crown, as a check and counterpoise to the territorial influence of the feudataries. On the other hand, his quarrel with the primate had driven him to throw himself on the support of those very feudataries whom it was his true policy to repress, and had brought him into hostility with the ecclesiastical interest which ought to have been, and which actually had been until now, his surest and most powerful aid. If it was what we may perhaps venture to call the feudal side of the ecclesiastical movement—its introduction of a separate system of law and jurisdiction, traversing and impeding the course of his own uniform regal administration—which roused the suspicions of the king, it was its anti-feudal side, its championship of the universal rights and liberties of men in the highest and widest sense, that provoked the jealousy of the nobles. This was a point which Henry, blinded for the moment by his natural instinct of imperiousness, seems to have overlooked when at the council of Northampton he stooped to avail himself of the assistance of the barons to crush the primate. They doubtless saw what he failed to see, that he was crushing not so much his own rival as theirs. The cause of the Church was bound up with that of the people, and both alike were closely knit to that of the Crown. Sceptre and crozier once parted, the barons might strive with the former at an advantage such as they had never had while Lanfranc stood beside William and Anselm beside Henry I., such as they never could have had if Thomas had remained standing by the side of Henry II.[583]

As yet, however, there was no token of the strife to come. In February 1166, two years after the publication of the Constitutions of Clarendon, Henry assembled another council at the same place and thence issued an ordinance[584] for carrying out a reform in the method of bringing to justice criminals in general, similar to that which he had in the Constitutions sought to apply to criminals of one particular class. By the Assize of Clarendon it was enacted that the king’s justices and the sheriffs should in every shire throughout the kingdom make inquiry concerning all crimes therein committed “since our lord the king was king.”[585] The method of their investigations was that of inquest by sworn recognitors chosen from among the “lawful men” of each hundred and township, and bound by oath to speak the truth according to their knowledge of the fact in question. This mode of legal inquiry had been introduced into England by William the Conqueror for fiscal purposes, such as the taking of the Domesday survey, and its employment for similar objects was continued by his successors. Henry II. had in the early years of his reign applied the same principle to the uses of civil litigation by an ordinance known as the “Great Assize,” whereby disputes concerning the possession of land might, if the litigants chose, be settled before the justices of the king’s court by the unanimous oath of twelve lawful knights chosen according to a prescribed form from among those dwelling in the district where the land lay, and therefore competent to swear to the truth or falsehood of the claim.[586] This proceeding seems to be assumed as already in use by the ninth Constitution of Clarendon, which ordains its application to disputes concerning Church lands.[587] The Assize of Clarendon aimed at bringing criminals to justice by the help of the same machinery. It decreed that in every hundred of every shire inquest should be made by means of twelve lawful men of the hundred and four from each township, who should be sworn to denounce every man known in their district as a robber, thief or murderer, or a harbourer of such; on their presentment the accused persons were to be arrested by the sheriff, and kept by him in safe custody till they could be brought before the itinerant justices, to undergo the ordeal of water and receive legal punishment according to its results.[588] The inquest was to be taken and the session of the justices held in full shire-court; no personal privileges of any kind were to exempt any qualified member of the court from his duty of attendance and of service on the jury of recognitors if required;[589] and no territorial franchise or private jurisdiction, whether of chartered town or feudal “honour,” was to shelter a criminal thus accused from the pursuit of the sheriffs on the authority of the justices.[590]

As was the case with most of Henry’s reforms, none of the methods of procedure adopted in this Assize were new inventions. Not only had the inquest by sworn recognitors been in use for civil purposes ever since the Norman conquest; it may even be that the germ of a jury of presentment in criminal cases, which in its modern shape appears for the first time in the Assize of Clarendon, is to be traced yet further back, to an ordinance of Æthelred II., whereby the twelve senior thegns in every wapentake were made to swear that they would “accuse no innocent man nor conceal any guilty one.”[591] The mission of itinerant justices—derived in principle from the early days of English kingship, when the sovereign himself perambulated his whole realm, hearing and deciding whatever cause came before him as he passed along—had been employed by Henry I., and revived by Henry II. immediately after his accession. A visitation of the greater part of England had been made by two of the chief officers of the Curia Regis in the first year of his reign, and again in the second; another circuit seems to have been made in 1159 by William Fitz-John; and in 1163 Alan de Neville held pleas of the forest in Oxfordshire, while the justiciar himself, Richard de Lucy, made a journey into Cumberland to hold the pleas of the Crown there, for the first time since the district had passed into the hands of the king of Scots.[592] From the date of the Assize of Clarendon, however, these journeys became regular and general,[593] and the work of the judges employed on them became far more extensive and important.

The first visitation under the assize was at once begun by Richard de Lucy and Geoffrey de Mandeville, earl of Essex;[594] and the Pipe Roll of the year furnishes some indications of its immediate results. The sums credited to the treasury for the pleas of the Crown reach a far greater amount than in the earlier rolls, and its receipts are further swelled by the goods and chattels of criminals condemned under the assize,[595] which were explicitly declared forfeit to the king.[596] The clause binding all qualified persons to be ready to serve on the juries was strictly enforced; one attempt to evade it was punished with a fine of five marks.[597] Another clause, enjoining upon the sheriffs the construction and repair of gaols for the detention of criminals, was carried into effect with equal vigour.[598] The work of the two justiciars was apparently not completed till the summer of 1167.[599] In that year pleas of the forest were held throughout the country by Alan de Neville; and in 1168 seven barons of the Exchequer made a general visitation of the shires for the collection of an aid on the marriage of the king’s eldest daughter.[600] This last was primarily a fiscal journey; the aid itself was a strictly feudal impost, assessed at one mark on every knight’s fee.[601] It was however levied in a remarkable manner. The Domesday survey, which by a few modifications in practice had been made to serve as the rate-book of the whole kingdom for eighty years, was at last found inadequate for the present purpose. A royal writ was therefore addressed to all the tenants-in-chief, requiring from them an account of the knights’ fees which they held and the services due upon them, whether under the “old infeoffment” of the time of Henry I., or under the “new infeoffment” since the resettlement of the country by his grandson.[602] The answers were enrolled in what is known as the Black Book of the Exchequer[603] and the aid was levied in accordance with their contents. The whole process occupied a considerable time; the preparations seem to have begun shortly after Matilda’s betrothal, for we hear of the purchase of “a hutch for keeping the barons’ letters concerning their knights” as early as 1166,[604] yet the collection of the money was not finished till the summer of 1169,[605] a year and a half after her marriage. The labours of the barons employed in it were however not confined to this one end; as usual, their travels were turned to account for judicial purposes,[606] and the system begun by the assize of Clarendon was by no means suffered to fall into disuse.