THE FIRST REFORMS
Henry began his work of reorganization by taking up the work which his
grandfather had begun--that of replacing the mere arbitrary power of the
sovereign by a uniform system of administration, and bringing into order
the various conflicting authorities which had been handed down from
ancient times, royal courts and manor courts, church courts, shire
courts, hundred courts, forest courts, and local courts in special
franchises, with all their inextricable confusion of law and custom and
procedure. Under Henry I. two courts, the _Exchequer_ and the _Curia
Regis_, had control of all the financial and judicial business of the
kingdom. The Exchequer filled a far more important place in the national
life than the Curia Regis, for the power of the king was simply measured
by the state of the treasury, when wars began to be fought by mercenaries,
and justice to be administered by paid officials. The court had to keep a
careful watch over the provincial accounts, over the moneys received from
the king's domains, and the fines from the local courts. It had to
regulate changes in the mode of payment as the use of money gradually
replaced the custom of payments in kind. It had to watch alterations in
the ownership and cultivation of land, to modify the settlement of
Doomsday Book so as to meet new conditions, and to make new distribution
of taxes. There was no class of questions concerning property in the most
remote way which might not be brought before its judges for decision.
Twice a year the officers of the royal household, the Chancellor,
Treasurer, two Chamberlains, Constable, and Marshal, with a few barons
chosen from their knowledge of the law, sat with the Justiciar at their
head, as "Barons of the Exchequer" in the palace at Westminster, round
the table covered with its "chequered" cloth from which they took their
name. In one chamber, the Exchequer of Account, the "Barons" received the
reports of the sheriffs from every county, and fixed the sums to be
levied. In a second chamber, the Exchequer of Receipt, the sheriff or
tax-farmer paid in his dues and took his receipts. The accounts were
carefully entered on the treasurer's roll, which was called from its
shape the Great Roll of the Pipe, and which may still be seen in our
Record Office; the chancellor kept a duplicate of this, known as the Roll
of the Chancery; and an officer of the king registered in a third Roll
matters of any special importance. Before the death of Henry I. the vast
amount and the complexity of business in the Exchequer Court made it
impossible that it should any longer be carried on wholly in London. The
"Barons" began to travel as itinerant judges through the country; as the
king's special officers they held courts in the provinces, where difficult
local questions were tried and decided on the spot. So important did the
work of finance become that the study of the Exchequer is in effect the
key to English history at this time. It was not from any philosophic love
of good government, but because the license of outrage would have
interrupted there turns of the revenue that Henry I. claimed the title of
the "Lion of justice." It was in great measure from a wish to sweep the
fees of the Church courts into the royal Hoard that the second Henry began
the strife with Becket in the Constitutions of Clarendon, and the increase
of revenue was the efficient cause of the great reforms of justice which
form the glory of his reign. It was the fount of English law and English
freedom.
The Curia Regis was composed of the same great officers of the household
as those who sat in the Exchequer, and of a few men chosen by the king
for their legal learning; but in this court they were not known as
"Barons" but as "Justices," and their head was the Chief Justice. The
Curia Regis dealt with legal business, with all causes in which the
king's interest was concerned, with appeals from the local courts, and
from vassals who were too strong to submit to their arbitration, with
pleas from wealthy barons who had bought the privilege of laying their
suit before the king, besides all the perplexed questions which lay far
beyond the powers of the customary courts, and in which the equitable
judgment of the king himself was required. In theory its powers were
great, but in practice little business was actually brought to it in the
time of Henry I; the distance of the court from country places, and the
expense of carrying a suit to it, would alone have proved an effectual
hindrance to its usefulness, even if the rules by which it was guided had
been much more complete and satisfactory than they actually were.
The routine of this system of administration, as well as the mass of
business to be done, effectually interfered with arbitrary action on the
king's part, and the regular and methodical work of the organized courts
gave to the people a fair measure of protection against the tyranny or
caprice of the sovereign. But the royal power which was given over to
justices and barons did not pass out of the hands of the king. He was
still in theory the fount of all authority and law, and could, whenever
he chose, resume the powers that he had granted. His control was never
relaxed; and in later days we find that while judges on circuit who gave
unjust judgment were summoned before the Curia Regis at Westminster, the
judges of the Curia Regis itself were called for trial before the king
himself in his council.
The reorganization of these courts was fast completed under Henry's great
justiciar, De Lucy, and the chancellor Thomas. The next few years show an
amount of work done in every department of government which is simply
astonishing. The clerks of the Exchequer took up the accounts and began
once more regular entries in the Pipe Roll; plans of taxation were
devised to fill the empty hoard, and to check the misery and tyranny
under which the tax payers groaned. The king ordered a new coinage which
should establish a uniform system of money over the whole land. As late
as the reign of Henry I. the dues were paid in kind, and the sheriffs
took their receipts for honey, fowls, eggs, corn, wax, wool, beer, oxen,
dogs, or hawks. When, by Henry's orders, all payments were first made in
coin to the Exchequer, the immediate convenience was great, but the state
of the coinage made the change tell heavily against the crown. It was
impossible to adulterate dues in kind; it was easy to debase the coin
when they were paid in money, and that money received by weight, whether
it were coin from the royal mints, or the local coinages that had
continued from the time of the early English kingdoms, or debased money
from the private mints of the barons. Roger of Salisbury, in fact, when
placed at the head of the Exchequer, found a great difference between the
weight and the actual value of the coin received. He fell back on a
simple expedient; in many places there had been a provision as old at
least as Doomsday, which enacted that the money weighed out for town-geld
should if needful be tested by re-melting. The treasurer extended this to
the whole system of the Exchequer. He ordered that all money brought to
the Exchequer should itself be tested, and the difference between its
weight and real value paid by the sheriff who brought it. The burden thus
fell on the country, for the sheriff would of course protect himself as
far as he could by exacting the same tests on all sums paid to him. If
the pound was worth but ten shillings in the market, no doubt the sheriff
only took it for ten shillings in his court. Practically each tax, each
due, must have been at least doubled, and the sheriff himself was at the
mercy of the Exchequer moneyers. There was but one way to remedy the
evil, by securing the purity of the coin, and twice during his reign
Henry made this his special care.
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.