THE GOVERNMENT OF ENGLAND
The building up of his mighty empire was not the only task which filled
the first years of Henry's reign. Side by side with this went on another
work of peaceful internal administration which we can but dimly trace in
the dearth of all written records, but which was ultimately to prove of
far greater significance than the imperial schemes that in the eyes of his
contemporaries took so much larger proportions and shone with so much
brighter lustre.
The restoration of outward order had not been difficult, for the anarchy
of Stephen's reign, terrible as it was, had only passed over the surface
of the national life and had been vanquished by a single effort. But the
new ruler of England had to begin his work of administration not only
amid the temporary difficulties of a general disorganization, but amid
the more permanent difficulties of a time of transition, when society was
seeking to order itself anew in its passage from the medieval to the
modern world; and his victory over the most obvious and aggressive forms
of disorder was the least part of his task. Through all the time of
anarchy powerful forces had been steadily at work with which the king had
now to reckon. A new temper and new aspirations had been kindled by the
troubles of the last years. The deposition of Stephen, the elections of
Matilda and of Henry, had been so many formal declarations that the king
ruled by virtue of a bargain made between him and his people, and that if
he broke his contract he justly forfeited his authority. The routine of
silent and submissive councils had been broken through, and the earliest
signs of discussion and deliberation had discovered themselves, while the
Church, exerting in its assemblies an authority which the late king had
helplessly laid down, formed a new and effective centre of organized
resistance to tyranny in the future Even the rising towns had seized the
moment when the central administration was paralysed to extend their own
privileges, and to acquire large powers of self-government which were to
prove the fruitful sources of liberty for the whole people.
We see everywhere, in fact, signs of the great contest which in one form
or another runs through the whole of the twelfth century, and gives its
main interest in our eyes to the English history of the time,--the
struggle between the iron organization of medieval feudalism and those
nascent forces of modern civilization which were fated in the end to
shatter and supersede it. In spite of the cry of lamentation which the
chroniclers carry down to us over the misery of a land stricken by plague
and famine and rapine, it is still plain that even through the terrible
years of Stephen's reign England had its share in the universal movement
by which the squalor and misery of the Middle Ages were giving place to a
larger activity and a better order of things A class unknown before was
fast growing into power,--the middle class of burghers and traders, who
desired above all things order, and hated above all things the medieval
enemy of order, the feudal lord. Merchant and cultivator and wool-grower
found better work ready to their hand than fighting, and the appearance
of mercenary soldiers marked everywhere the development of peaceful
industries. Amid all the confusion of civil war the industrial activities
of the country had developed with bewildering rapidity; while knights and
barons led their foreign hirelings to mutual slaughter, monks and canons
were raising their religious houses in all the waste places of the land,
and silently laying the foundations of English enterprise and English
commerce. To the great body of the Benedictines and the Cluniacs were
added in the middle of the twelfth century the Cistercians, who founded
their houses among the desolate moorlands of Yorkshire in solitary places
which had known no inhabitants since the Conqueror's ravages, or among
the swamps of Lincolnshire. A hundred and fifteen monasteries were built
during the nineteen years of Stephen's reign, more than had been founded
in the whole previous century; a hundred and thirteen were added to these
during the reign of Henry. In half a century sixty-four religious houses
were built in Yorkshire and Lincolnshire alone. Monastery and priory, in
which the decorated Romanesque was giving way to the first-pointed
architecture, towered above the wretched mud-hovels in which the whole of
the population below the class of barons crowded; their churches were
distinguished by the rare and novel luxury of glass windows, which, as
they caught the red light of the setting sun, startled the peasant with
omens of coming ill. Multitudes of men were busied in raising the vast
pile of buildings which made up a religious house,--cloisters, dormitories,
chapels, hospitals, granaries, barns, storehouses, whose foundations when
all else is gone still show in the rugged surface of some modern field.
Regular and secular clergy were alike spurred on in their work by jealous
rivalry. Archbishop Roger of York was at the opening of Henry's reign
building his beautiful church at Ripon, of whose rich decoration traces
still remain, while he gave scant sympathy and encouragement to the
Cistercian monks still busy with the austere mass of buildings which
they had raised at Fountains almost within sight of the Ripon towers.
We may gain some faint idea of the amazing stir and industry which the
founding of these monasteries implied by following in our modern farms
and pasture lands the traces which may even now be seen of the toil of
these great preachers of labour. The whole water supply of a countryside
for miles round was gathered up by vast drainage works; stagnant pools
were transformed into running waters closed in by embankments, which
still serve as ditches for the modern farmer; swamps were reclaimed that
are only now preserved for cultivation by maintaining the dykes and
channels first cut by medieval monks; mills rose on the banks of the
newly-created streams; roads were made by which the corn of surrounding
villages might be carried to the central mill and the produce of the land
brought to the central storehouse. The new settlers showed a measureless
cunning and industry in reclaiming worthless soil; and so eager were they
for land at last, that the Cistercians were even said to desecrate
churchyards, and to encroach on the borders of royal forests. They grew
famous for the breeding of horses according to the exacting taste of the
day, learned in the various species of palfreys and sumpter horses and
knight's chargers and horses for ambling or for trotting. They thanked
Heaven for the "blessings of fatness and fleeces," as foreign weavers
sought their wool and the gold of Flanders was poured into their
treasure-houses. The same enterprise and energy which in modern days made
England the first manufacturing country of the world was then, in fact,
fast pressing her forward to the place which Australia now holds towards
modern Europe,--the great wool-growing country, the centre from whence
the raw material for commerce was supplied. In vain the Church by its
canons steadily resisted the economic changes of a time when wealth began
to gather again and capital found new uses, and bitterly as it declaimed
against usury and mortgages, angry complaints still increased "that many
people laying aside business practised usury almost openly."
Nor were the towns behindhand in activity. As yet, indeed, the little
boroughs were for the most part busy in fighting for the most elementary
of liberties--for freedom of trade within the town, for permission to hold
a market, for leave to come and go freely to some great fair, for the right
to buy and sell in some neighbouring borough, for liberty to carry out
their own justice and regulate the affairs of their town. They were buying
from the lord, in whose "demesne" they lay, permission to gather wood in
the forest, right of common in its pasture, the commutation of their
services in harvest-time for "reap-silver," and of their bondage to the
lord's mill for "multure-penny." Or they were fighting a sturdy battle with
the king's justices to preserve some ancient privilege, the right of the
borough perhaps to "swear by itself,"--that is, to a jury of its own or its
freedom from the general custom of "frank-pledge." As trade advanced
commercial bodies grew up in the boroughs and formed themselves into gilds;
and these gilds gradually drew into their own hands the government of the
town, which in old days had been decided by the general voice of the whole
body of its burghers--that is, of those who held land within its walls.
The English borough began, in fact, to resemble the foreign "Commune."
Gilds of bakers, of weavers, of mercers, of fullers, of butchers,
goldsmiths, pepperers, clothiers, and pilgrims appeared in London, York,
Gloucester, Nottingham, even in little boroughs such as that of St.
Edmunds; while in distant Cornwall, Totnes, Lidford, and Bodmin set up
their gilds. How Henry regarded the movement it is hard to say. The gilds
had to pay, as everything had to pay, to the needy Treasury; but otherwise
they were not interfered with, and went on steadily increasing in power and
numbers.
Prosperity brought with it the struggle for supremacy, and the history of
nations was rehearsed on a petty stage, with equal passions if with less
glory. A thriving village or township would begin to encroach on the
common land of its weaker neighbours, would try to seize some of its
rights of pannage in the forest, or fishing in the stream. But its most
strenuous efforts were given to secure the exclusive right of trading.
Free trade between village and village in England was then, in fact, as
much unknown as free trade at this day between the countries of modern
Europe. Producer, merchant, manufacturer saw in "protection" his only
hope of wealth or security. Jealously enclosed within its own borders,
each borough watched the progress of its neighbours "with anxious
suspicion." If one of them dared defiantly to set up a right to make and
sell its own bread and ale, or if it bought a charter granting the right
to a market, it found itself surrounded by foes. The new market was
clearly an injury to the rights of a neighbouring abbot or baron or town
gild, or it lessened the profits of the "king's market" in some borough
on the royal demesne. Then began a war, half legal, half of lawless
violence. Perhaps the village came off victorious, and kept its new
market on condition that it should never change the day without a royal
order (unless in deference to the governing religious feeling of the
time, it should change it from Sunday to a week day). Perhaps, on the
other hand, it saw its charter vanish, and all the money it had cost with
it, its butchers' and bakers' stalls shattered, its scales carried off,
its ovens destroyed, the "tumbril" for the correction of fraudulent baker
or brewer destroyed. Of such a strife we have an instance in the fight
which the burghers of Wallingford carried on with their neighbours. They
first sought to crush the rising prosperity of Abingdon by declaring that
its fair was an illegal innovation, and that in old days nothing might be
sold in the town save bread and ale. Oxford, which had had a long quarrel
with Abingdon over boat cargoes and river tolls, readily joined in the
attack, but ultimately by the king's judgment Abingdon was declared to
have had right to a "full market", and Wallingford was discomfited. A
little later its wrath was kindled afresh by the men of Crowmarsh, who,
instead of coming to the Wallingford market, actually began to make their
own bread and ale--by what warrant no one knew, said the Wallingford
bakers and brewers. Crowmarsh held out through the later years of Henry's
reign and Richard's, had a sore struggle under John, and at last under
Henry III. saw the officers of justice come down upon them a second time,
and make a general wreck of ovens and "tumbril," while the weights were
carried off to triumphant Wallingford.
But if an era of industrial activity had opened, the new intellectual
impulse of the time was yet more striking. Great forces had everywhere
worked together under the one name of the Church: the ecclesiastical
organization which was represented in Rome, in the Episcopate, and in the
Canon law; the democratic monachism; the intellectual temper with its
pursuit of pure knowledge; the religious mystical spirit which was
included in all the rest and yet separate from them. But other elements
than these were at work in the twelfth century,--the literary and historic
movement, the legal revival, the new scepticism, the spirit of wide
imperialism, the romantic impulse. Education had up to this time been
wholly undertaken by the Church. The work of teaching had been one of the
main objects of the cathedral; the school and its chancellor were as
essential parts of the foundation as dean or precentor. No rivals to the
cathedral schools existed save those of the monasteries, and education
naturally bore the impress given to it in these great institutions;
profane learning was only valued so far as it could be used to illustrate
the Bible, and the ordinary teaching was almost wholly founded on four or
five authors, who wrote when the struggle of the Empire against the
barbarians was almost over, and who represented the last efforts of a
learning which was ready to vanish. The monastic libraries show how
narrow was the range of reading. The great monastery of Bec had about
fifty books. At Canterbury the library of Christ Church, which a century
later possessed seven hundred volumes, had at this time but a hundred and
fifty. Its single Greek work was a grammar; and if it could boast of a
copy of the Institutes of Justinian, it did not yet possess a single book
of civil law, not even Gratian's _Decretum_. The age of Universities,
however, had now begun, and English scholars went abroad in numbers to
study law at Bologna and the Italian universities, or to learn philosophy
and the arts at Paris, or at some of the less costly schools in Gaul. On
all sides they met with the stir of political and religious speculation.
The crusades and the intercourse with the East had broken down the
boundaries between Christian and Mohammedan thought; the Jews were
teaching science and medicine, and had just brought from the East the
philosophy of Aristotle. France struck the first note of a new literature
in her chronicles, her national poems, and the songs of her troubadours.
All Paris was ringing with the struggle of Abelard and St. Bernard. At
its university Peter Lombard was preparing to publish his _Sentences_,
which were to form the framework for the dogmatic theology of centuries
to come. New theories of liberty were quickened by classical studies
which made men familiar with the heroes of Greece and Rome. Abelard's
disciple, Arnold of Brescia, was preaching his theory of political and
religious freedom; civil government was to return to the old republican
forms of ancient Rome, and the clergy were to be separated from all
secular jurisdiction. In Lombardy the growth of wealth, population, and
trade, demanded a more developed jurisprudence, and a new study had
sprung up of Roman law. Bolognese lawyers lectured on the Pandects of
Justinian, and by their work the whole legal education of the day was
transformed; old prejudices and old traditions lost the authority which
had long hedged them about, and the new code threatened to destroy
everywhere the imperfect systems of the past with which it came in
contact. The revival of the study of civil law was followed by a new
scientific study of Canon law; and a recognized code was for the
first time developed, as well as a minute system of legal procedure,
when Gratian published in 1151 the _Decretum_, a great text-book of
ecclesiastical law.
Amid all the intellectual activity which surrounded the English students
abroad it is, curious to note what they carried home with them across the
Channel, and what they left simply untouched. The zeal for learning
quickly showed itself in the growth of the Universities. As early as 1133
Robert Pulleyn was teaching Latin at Oxford. In 1149 Archbishop Theobald
brought to it Master Vacarius, a famous Lombard lawyer, who lectured on
the Civil law until he was expelled by Stephen, half fearful of the new
teaching and half influenced by the pressure of the older and more
conservative of the English bishops. There was much of the foreign
movement, however, which found no place in England. Difference of tongue
shut out Norman and Englishman from the influence of the new Provençal
poetry, and for a century to come England owed nothing to the finished
art of the South. The strip of sea which kept aloof all European tumults
shut out also the speculations in politics and government which were
making their way abroad. Even the religious movement which overran one
half of France under the Albigenses, or that which counted its followers
and martyrs by multitudes in Flanders never crossed the Channel, in spite
of the constant intercourse between the peoples; and missionaries from
Germany during the reign of Henry only succeeded in converting one poor
woman in England who immediately recanted. It was in other directions
that the energies of the people found their exercise. If Englishmen were
heedless of foreign philosophers, they were quick to notice that the
fruit of the vine had failed, and forthwith the unheard-of novelty of
taverns where beer and mead were sold sprang up in France, probably by
the help of those English traders whose beer was the marvel of Frenchmen.
It was these new conditions of the national life which constituted the
real problem of government--a problem far more slow and difficult to work
out than the mere suppression of a turbulent baronage. In the rapid
movement towards material prosperity, the energies of the people were in
all directions breaking away from the channels and limits in which they
had been so long confined. Rules which had been sufficient for the
guidance of a simple society began to break down under the new fullness
and complexity of the national life, and the simple decisions by which
questions of property and public order had been solved in earlier times
were no longer possible. Moreover, a new confusion and uncertainty had
been brought into the law in the last hundred years by the effort to fuse
together Norman and English custom. Norman landlord or Norman sheriff
naturally knew little of English law or custom, and his tendency was
always to enforce the feudal rules which he practised on his Norman
estates. In course of time it came about that all questions of land-tenure
and of the relations of classes were regulated by a kind of double system.
The Englishman as well as the Norman became the "man" of his lord as in
Norman law, and was bound by the duties which this involved. On the other
hand, the Norman as well as the Englishman held his land subject to the
customary burdens and rights recognized by English law. Both races were
thus made equal before the law, and no legal distinction was recognized
between conqueror and conquered. There was, however, every element of
confusion and perplexity in the theory and administration of the law
itself, in the variety of systems which were contending for the mastery,
and in the inefficiency of the courts in which they were applied. English
law had grown up out of Teutonic custom, into which Roman tradition had
been slowly filtering through the Dark Ages Feudal law still bore traces
of its double origin in the system of the Teutonic "comitatus" and of the
Roman "beneficium." Forest law, which governed the vast extent of the
king's domains, was bound neither by Norman forms nor by English
traditions, but was framed absolutely at the king's will. Canon law had
been developed out of customs and precedents which had served to regulate
the first Christian communities, and which had been largely formed out of
the civil law of Rome. There was a multitude of local customs which
varied in every hundred and in every manor, and which were preserved by
the jealousy that prevailed between one village and another, the strong
sense of local life and jurisdiction, and the strict adherence to
immemorial traditions.
These different codes of law were administered in various courts of
divers origins. The tenant-in-chief of the king who was rich enough had
his cause carried to the King's Court of barons, where he was tried by his
peers. The poorer vassals, with the mass of the people, sought such
justice as was to be had in the old English courts, the Shire Court held
by the sheriff, and, where this survived, the Hundred Court summoned by
the bailiff. The lowest orders of the peasant class, shut out from the
royal courts, could only plead in questions of property in the manor
courts of their lords. The governing bodies of the richer towns were
winning the right to exercise absolute jurisdiction over the burghers
within their own walls. The Forest courts were held by royal officers, who
were themselves exempt from all jurisdiction save that of the king. And
under one plea or another all men in the State were liable for certain
causes to be brought under the jurisdiction of the newly established
Church courts. This system of conflicting laws was an endless source of
perplexity. The country was moreover divided into two nationalities, who
imperfectly understood one another's customary rights; and it was further
broken into various classes which stood in different relations to the law.
Those who had sufficient property were not only deemed entirely
trustworthy themselves, but were also considered answerable for the men
under them; a second class of freeholders held property sufficient to
serve as security for their own good behaviour, but not sufficient to make
them pledges for others; there was a third and lower class without
property, for whose good conduct the law required the pledge of some
superior. In a state of things so complicated, so uncertain and so
shifting, it is hard to understand how justice can ever have been
secured; nor, indeed, could any general order have been preserved,
save for the fact that these early courts of law, having all sprung
out of the same conditions of primitive life, and being all more or
less influenced and so brought to some common likeness by the Roman
law, did not differ very materially in their view of the relations
between the subjects of the State, and fundamentally administered the
same justice. Until this time too there had been but little legal
business to bring before the courts. There was practically no commerce;
there was little sale of land; questions of property were defined within
very narrow limits; a mass of contracts, bills of exchange, and all the
complicated transactions which trade brings with it, were only beginning
to be known. As soon, however, as industry developed, and the needs of a
growing society made themselves felt, the imperfections of the old order
became intolerable. The rude methods and savage punishments of the law
grew more and more burdensome as the number of trials increased; and the
popular courts were found to be fast breaking down under the weight of
their own ignorance and inefficiency.
The most important of these was the Shire Court. It still retained its
old constitution; it preserved some tradition of a tribunal where the
king was not the sole fountain of justice, and the memory of a law which
was not the "king's law." It administered the old customary English
codes, and carried on its business by the old procedure. There came to it
the lords of the manors with their stewards, the abbots and priors of the
county with their officers, the legal men of the hundreds who were
qualified by holding property or by social freedom, and from every
township the parish priest, with the reeve and four men, the smiths,
farmers, millers, carpenters, who had been chosen in the little community
to represent their neighbours; and along with them stood the pledges, the
witnesses, the finders of dead bodies, men suspected of crime. The court
was, in fact, a great public meeting of the whole county; there was no
rank or order which did not send some of its number to swell the confused
crowd that stood round the sheriff. The criminal was generally put on his
trial by accusation of an injured neighbour, who, accompanied by his
friends, swore that he did not bring his charge for hatred, or for envy,
or for unlawful lust of gain. The defendant claimed the testimony of his
lord, and further proved his innocence by a simple or threefold
compurgation--that is, by the oath of a certain number of freemen among
his neighbours, whose property gave them the required value in the eye of
the law, and who swore together as "compurgators" that they believed his
oath of denial to be "clean and unperjured." The faith of the compurgator
was measured by his landed property, and the value of the joint-oath which
was required depended on a most intricate and baffling set of arithmetical
calculations, and differed according to the kind of crime, the rank of the
criminal, and the amount of property which was in dispute, besides other
differences dependent on local customs. Witnesses might also be called
from among neighbours who held property and were acquainted with the facts
to which they would "dare" to swear. The final judgment was given by
acclamation of the "suitors" of the court--that is, by the owners of
property and the elected men of the hundreds or townships; in other words,
by the public opinion of the neighbourhood. If the accused man were of bad
character by common report, or if he could find no friends to swear in his
behalf, "the oath burst," and there remained for him only the ordeal or
trial by battle, which he might accept or refuse at his own peril. In the
simple ordeal he dipped his hand in boiling water to the wrist, or carried
a bar of redhot iron three paces. If in consequence of his lord's
testimony being against him the triple ordeal was used, he had to plunge
his arm in water up to the elbow, or to carry the iron for nine paces. If
he were condemned to the ordeal by water, his death seems to have been
certain, since sinking was the sign of innocence, and if the prisoner
floated he was put to death as guilty. The other alternative, trial by
battle, which had been introduced by the Normans, was extremely unpopular
in England; it told hardly against men who were weak or untrained to arms,
or against the man of humble birth, who was allowed against his armed
opponent neither horse nor the arms of a knight, but simply a leathern
jacket, a shield of leather or wood, and a stick without knots or points.
At the beginning of the reign of Henry II, the Shire courts seem to have
been nearly as bad as they could be. Scarcely any attempt had been made,
perhaps none had till now been greatly needed, to improve a system which
had grown up in a dim and ruder past. The Norman kings, indeed, had
introduced into England a new method of deciding doubtful questions of
property by the "recognition" of sworn witness instead of by the English
process of compurgation or ordeal. Twelve men, who must be freemen and
hold property, were chosen from the neighbourhood, and as "jurors" were
sworn to state truly what they knew about the question in dispute, and
the matter was decided according to their witness or "recognition." If
those who were summoned were unacquainted with the facts, they were
dismissed and others called; if they knew the facts but differed in their
statement, others were added to their number, till twelve at least were
found whose testimony agreed together. These inquests on oath had
been used by the Conqueror for fiscal purposes in the drawing up of
Doomsday Book. From that time special "writs" from king or justice were
occasionally granted, by which cases were withdrawn from the usual modes
of trial in the local courts, and were decided by the method of
recognition, which undoubtedly provided a far better chance of justice
to the suitor, replacing as it did the rude appeal to the ordeal or to
battle by the sworn testimony of the chosen representatives, the good men
and true, of the neighbourhood. But the custom was not yet governed by any
positive and inviolable rules, and the action of the King's Court in this
respect was imperfectly developed, uncertain, and irregular.
It is scarcely possible, indeed, to estimate the difficulties in the way
of justice when Henry came to the throne. The wretched freeholders
summoned to the Shire Court from farm and cattle, from mill or anvil
or carpenter's bench, knew well the terrors of the journey through marsh
and fen and forest, the dangers of flood and torrent, and perhaps of
outlawed thief or murderer, the privations and hardships of the way; and
the heavy fines which occur in the king's rolls for non-attendance show
how anxiously great numbers of the suitors avoided joining in the
troublesome and thankless business of the court. When they reached the
place of trial a strange medley of business awaited them as questions
arose of criminal jurisdiction, of feudal tenure, of English "sac and
soc," of Norman franchises and Saxon liberties, with procedure sometimes
of the one people, sometimes of the other. The days dragged painfully on
as, without any help from trained lawyers, the "suitors" sought to settle
perplexed questions between opposing claims of national, provincial,
ecclesiastical, and civic laws, or made arduous journeys to visit the
scene of some murder or outrage, or sought for evidence on some difficult
problem of fact. Evidence, indeed, was not easy to find when the question
in dispute dated perhaps from some time before the civil war and the
suppression of the sheriff's courts, for no written record was ever kept
of the proceedings in court, and everything depended on the memory of
witnesses. The difficulties of taking evidence by compurgation increased
daily. A method which centuries before had been successfully applied to
the local crimes of small and stationary communities bound together by the
closest ties of kinship and of fellowship in possession of the soil, when
every transaction was inevitably known to the whole village or township,
became useless when new social and industrial conditions had destroyed the
older and simpler modes of life. The procedure of the courts was
antiquated and no longer guided by consistent principles. Their modes of
trial were so cumbrous, formal, and inflexible that it was scarcely
possible to avoid some minute technical mistake which might invalidate
the final decision.
The business of the larger courts, too, was for the most part carried on
in French under sheriff, or bailiff, or lord of the manor. The Norman
nobles did not know Latin, they were but gradually learning English; the
bulk of the lesser clergy perhaps spoke Latin, but did not know Norman;
the poorer people spoke only English; the clerks who from this time began
to note down the proceedings of the king's judges in Latin must often
have been puzzled by dialects of English strange to him. When each side
in a trial claimed its own customary law, and neither side understood the
speech of the other, the president of the court had every temptation to
be despotic and corrupt, and the interpreter between him and his suitors
became an important person who had much influence in deciding what mode
of procedure was to be followed. The sheriff, often holding a hereditary
post and fearing therefore no check to his despotism, added to the burden
of the unhappy freeholders by a custom of summoning at his own fancy
special courts, and laying heavy fines on those who did not attend them.
Even when the law was fairly administered there was a growing number of
cases in which the rigid forms of the court actually inflicted injustice,
as questions constantly arose which lay far outside the limits of the old
customary law of the Germanic tribes, or of the scanty knowledge of Roman
law which had penetrated into other codes. The men of that day looked too
often with utter hopelessness to the administration of justice; there was
no peril so great in all the dangers that surrounded their lives as the
peril of the law; there was no oppression so cruel as the oppression
wrought by the harsh and rigid forms of the courts. From such calamities
the miserable and despairing victims could look for no help save from the
miraculous aid of the saints; and society at that time, as indeed it has
been known to do in later days, was for ever appealing from the iniquity
of law to God,--to a God who protected murderers if they murdered Jews,
and defended robbers if they plundered usurers, who was, indeed, above
all law, and was supposed to distribute a violent and arbitrary justice,
answering to the vulgar notion of an equity unknown on earth.
We catch a glimpse of a trial of the time in the story of a certain
Ailward, whose neighbour had refused to pay a debt which he owed him.
Ailward took the law into his own hands, and broke into the house of his
debtor, who had gone to the tavern and had left his door fastened with
the lock hanging down outside, and his children playing within. Ailward
carried off as security for his debt the lock, a gimlet, and some tools,
and a whetstone which hung from the roof. As he sauntered home, however,
his furious neighbour overtook him, having heard from the children what
had been done. He snatched the whetstone from Ailward's hand and dealt
him a blow on the head with it, stabbed him in the arm with a knife, and
then triumphantly carried him to the house which, he had robbed, and
there bound him as "an open thief" with the stolen goods upon him. A
crowd gathered round, and an evil fellow, one Fulk, the apparitor, an
underling of the sheriff employed to summon criminals to the court,
remarked that as a thief could not legally be mutilated unless he had
taken to the value of a shilling, it would be well to add a few articles
to the list of stolen goods. Perhaps Ailward had won ill-fame as a
creditor, or even, it may be, a money-lender in the village, for his
neighbours clearly bore him little goodwill. The crowd readily consented.
A few odds and ends were gathered--a bundle of skins, gowns, linen, and
an iron tool,--and were laid by Ailward's side; and the next day, with
the bundle hung about his neck, he was taken before the sheriff and the
knights, who were then holding a Shire Court. The matter was thought
doubtful; judgment was delayed, and Ailward was made fast in Bedford
jail for a month, till the next county court. There the luckless man sent
for a priest of the neighbourhood, and confessing his sins from his youth
up, he was bidden to hope in the prayers of the blessed Virgin and of all
the saints against the awful terrors of the law, and received a rod to
scourge himself five times daily; while through the gloom shone the
glimmer of hope that having been baptized on the vigil of Pentecost,
water could not drown him nor fire burn him if he were sent to the
ordeal. At last the month went by and he was again carried to the Shire
Court, now at Leighton Buzzard. In vain he demanded single combat with
Fulk, or the ordeal by fire; Fulk, who had been bribed with an ox,
insisted on the ordeal of water, so that he should by no means escape.
Another month passed in the jail of Bedford before he was given up to be
examined by the ordeal. Whether he underwent it or whether he pleaded
guilty when the judges met is uncertain, but however this might be, "he
received the melancholy sentence of condemnation; and being taken to the
place of punishment, his eyes were pulled out and he was mutilated, and
his members were buried in the earth in the presence of a multitude of
persons."
Nor was there for the mass of the people any real help or security to be
found in an appeal to the supreme tribunal of the realm where the king
sat in council with his ministers. This still remained a tribunal of
exceptional resort to which appeals were rare. There was one Richard
Anesty, who, in these first years of Henry's reign, desired to prove in
the King's Court his right to hold a certain property. For five years
Richard, his brother, and a multitude of helpers, were incessantly busied
in this arduous task. The court followed the king, and the king might be
anywhere from York to the Garonne. The unhappy suitor might well have
joined in a complaint once made by a secretary of Henry in search of his
master: "Solomon saith there be three things difficult to be found out,
and a fourth which may hardly be discovered: the way of an eagle in the
air; the way of a ship in the sea; the way of a serpent on the ground;
and the way of a man in his youth. I can add a fifth: the way of a king
in England." The whole business now done by post had then to be carried
on by laborious journeyings, in which we hear again and again that horses
died on the road; if a writ were needed from king or queen, if the royal
seal were required, or a certificate from a bishop, or a letter from an
archbishop, special messengers posted across country; then the writ must
be carried in the same way to York, Lincoln, or elsewhere to be examined
by some famous lawyer, sometimes an Italian learned in the last legal
fashions of the day; perhaps it was pronounced faulty, or it might be
that the seal of justiciar or archbishop was refused on its return from
the lawyer, and the same business had to begin all over again; twice
messengers had to be sent to Rome, the journey each way taking at least
forty days of incessant and dangerous travelling. When at last the
appointed day for judgment by the justiciar came, friends, helpers, and
witnesses had to be called together in the same laborious way, and
transported at great cost to the place of trial, and there kept waiting
till news was brought that the plea could not then be heard; and thus
again and again the luckless suitor was summoned, each time to a
different town in England. In every town he was forced by his necessities
to borrow money from some Jew, who demanded about eighty-seven per cent
for the loan; and when at last, as Richard was worn out with the delays
of justiciars, Henry appeared on the scene, and, "thanks to our lord the
king," the land was adjudged to the suitor, he had to raise fresh money
to fee the lawyers, the bishop's staff, the officers of the King's Court,
the king's physicians, the king and queen, besides the sums which must be
given to his helpers and pleaders. The end of the story leaves him
mournfully counting up a long list of Jewish creditors, who bid fair to
exhaust the profits of his new possessions.
Such were in brief outline some of the difficulties which made order and
justice hard to win. Society was helpless to protect itself: news spread
slowly, the communication of thought was difficult, common action was
impossible. Amid all the shifting and half understood problems of
medieval times there was only one power to which men could look to protect
them against lawlessness, and that was the power of the king. No external
restraints were set upon his action; his will was without contradiction.
The medieval world with fervent faith believed that he was the very spring
and source of justice. In an age when all about him was changing, and when
there was no organized machinery for the administration of law, the king
had himself to be judge, lawgiver, soldier, financier, and administrator;
the great highways and rivers of the kingdom were in "his peace;" the
greater towns were in his demesne; he was guardian of the poor and
defender of the trader; he was finance minister in a society where
economic conditions were rapidly changing; here presented a developed
system of law as opposed to the primitive customs of feud and private war;
he was the only arbiter of questions that grew out of the new conflict of
classes and interests; he alone could decree laws at his absolute will and
pleasure, and could command the power to carry out his decrees; there was
not even a professional lawyer who was not in his court and bound to his
service.
Henry saw and used his opportunity. Even as a youth of twenty-one he
assumed absolute control in his courts with a knowledge and capacity which
made him fully able to meet trained lawyers, such as his chancellor,
Thomas, or his justiciar, De Lucy. Cool, businesslike, and prompt, he set
himself to meet the vast mass of arrears, the questions of jurisdiction
and of disputed property, which had arisen even as far back as the time of
Henry I., and had gone unsettled through the whole reign of Stephen, to
the ruin and havoc of the lands in question. He examined every charter
that came before him; if any was imperfect he was ready to draw one up
with his own hand; he watched every difficult point of law, noted every
technical detail, laid down his own position with brief decision. In the
uncertain and transitional state of the law the king's personal
interference knew scarcely any limits, and Henry used his power freely.
But his unswerving justice never faltered. Gilbert de Bailleul, in some
claim to property, ventured to make light of the charter of Henry I., by
which it was held. The king's wrath blazed up. "By the eyes of God," he
cried, "if you can prove this charter false, it would be worth a thousand
pounds to me! If," he went on, "the monks here could present such a
charter to prove their possession of Clarendon, which I love above all
places, there is no pretence by which I could refuse to give it up to
them!"
It is hard to realise the amazing physical endurance and activity which
was needed to do the work of a medieval king. Henry was never at rest. It
was only by the most arduous labour, by travel, by readiness of access to
all men, by inexhaustible patience in weighing complaint and criticism,
that he learned how the law actually worked in the remotest corners of
his land. He was scarcely ever a week in the same place; his life in
England was spent in continual progresses from south to north, from east
to west. The journeyings by rough trackways through "desert" and swamp
and forest, through the bleak moorlands of the Pennine Hills, or the
thickets and fens that choked the lower grounds, proved indeed a sore
trial for the temper of his courtiers; and bitter were the complaints of
the hardships that fell to the lot of the disorderly train that swept
after the king, the army of secretaries and lawyers, the mail-clad
knights and barons followed by their retainers, the archbishop and his
household, bishops and abbots and judges and suitors, with the "actors,
singers, dicers, confectioners, huxters, gamblers, buffoons, barbers, who
diligently followed the court." Knights and barons and clerks, accustomed
to the plenty and comfort of palace and castle, found themselves at the
mercy of every freak of the king's marshals, who on the least excuse
would roughly thrust them out into the night from the miserable hut in
which they sought shelter and cut loose their horses' halters, and whose
hearts were hardly softened by heavy bribes. They were often half-starved;
if food was to be had at all, it was at the best stale fish, sour beer and
wine, coarse black bread, and meat scarcely eatable, even with the rough
appetite of travellers of that age. Matters were made ten times worse by
Henry's mode of travelling. "If the king has proclaimed that he intends to
stop late in any place, you may be sure that he will start very early in
the morning, and with his sudden haste destroy every one's plans. It often
happens that those who have let blood or taken medicine are obliged at the
hazard of their lives to follow. You will see men running about like mad;
urging forward their pack-horses, driving their waggons into one another,
everything in confusion, as if hell had broken loose. Whereas, if the king
has given out that he will start early in the morning, he will certainly
change his mind, and you may be sure he will snore till noon. You will see
the pack-horses drooping under their loads, waggons waiting, drivers
nodding, tradesmen fretting, all grumbling at one another. Men hurry to
ask the loose women and the liquor retailers who follow the court when the
king will start; for these are the people who know most of the secrets of
the court." Sometimes, on the other hand, when the din of the camp was
silenced for a while in sleep, a sudden message from the royal lodging
would again set all in commotion. A wild clatter of horsemen and footmen
would fill the darkness. The stout pack-horses, probably borrowed from a
neighbouring monastery to carry the heavy Rolls in which state business
was chronicled, were hastily laden. Baggage of every kind was slung across
the backs of horses, or stowed into cumbrous two-wheeled waggons made of
rough planks, or of laths covered with twisted osiers, which had been
seized from farmer or peasant for the king's journey. The forerunners
pushed on in front to give notice of the king's arrival, and in the dim
morning light the motley train of riders at last crowded along the narrow
trackway, followed heavily by the waggons dragged by single file of
horses, which too often foundered in the muddy hollows, or half-plunged
into the torrents through rents and chasms in the low, narrow bridges that
threatened at every instant to crumble away under the strain. But before
the weary day's journey was over the king would suddenly change his mind,
stop short of the town towards which all were toiling in hope of food and
shelter, and turn aside to some spot in the woods where there was perhaps
a solitary hut and food only for himself: "And I believe, if I dare to say
so, that he took delight in our distresses," groans the poor secretary as
he pictures the knights wandering by twos and threes in the thickets,
separated in the darkness from their followers, and drawing their swords
one against another in furious strife for the possession of some shelter
for which pigs would scarcely have quarrelled. "Oh, Lord God Almighty,"
he ends, "turn and convert the heart of the king from this pestilent
habit, that he may know himself to be but man, and that he may show a
royal mercy and human compassion to those who are driven after him not
by ambition but by necessity."
But at whatever inconvenience to his courtiers Henry carried out his
own purposes, and kept pace with the enormous mass of business that came
to him. In all his hurried journeys we see busy royal clerks scribbling
away at each halt charters, grants, letters patent and letters close, the
king too fighting, riding, dictating, signing, sometimes dating his
letters from three places on the same day. A travelling king such as this
was well known to all his people. He was no constitutional fiction, but a
living man; his character, his look and presence, his oaths and jests,
his wrath, all were noted and talked over; the chroniclers who followed
his court with their gossip and their graver news spread the knowledge of
his doings. A new sense of law and justice grew up under a sovereign who
himself journeyed through the length and breadth of the land, subduing
the unruly, hearing pleas, revising unjust sentences, drawing up charters
with his own hand, setting the machinery of government to work from end
to end of England. More than this, the king himself had learned to know
his people. He had seen for himself the castles of the barons, the huts
of the peasants, the little villages in the clearings; he had seen the
sheriff sitting in the shire court, the lord of the manor doing justice
in his "hall-moot," the bishop and archdeacon dispensing the law in the
church courts. By his sudden journeys, his unexpected movements and rapid
change of plans, he arrived at the very moment and the very place where
no one looked for him; nothing was safe from his eye and ear; no false
sheriff or rebellious lord could be sure when his terrible master might
be at his doors. Foreigner as the king was, there was soon no Englishman
who knew the affairs of his kingdom so well. His penetrating curiosity,
his wide experience, his practised judgment, rapidly made him one of the
most sagacious administrators and wisest legislators that ever guided
England in a very critical moment of her history; and when he finally
drew up his system of reform there was not a single point of principle in
it from which he or his successors found it necessary afterwards to draw
back.