accordingly dismiss from our minds at the outset any notion of a
government with a capital, a central treasury and judicature, and a
common assembly. A fixed central treasury existed only in the most
advanced of the individual states, and it was many years before the
courts established themselves permanently at Westminster and Rouen.
Government was still something personal, centring in the person of the
sovereign, and the ministers of the state were still his household
servants. The king had no fixed residence, and as he moved from place
to place, his household and its officers moved with him. Indeed kings
were just beginning to learn that it was safer to leave their treasure
in some strong castle than to carry it about in their wanderings; it
was not till 1194 that the capture of his baggage train by Richard the
Lion-Hearted taught the French king Philip Augustus to leave his money
and his title-deeds at Paris when he went on a military expedition.
We must not be surprised to find that the principal common element in
Henry’s empire was Henry himself, supplemented by his most immediate
household officers, and that many of these officers, such as the
seneschals and the justiciars, were limited in their functions to
England or Normandy or Anjou, and usually remained in their particular
country to look after affairs in the king’s absence. There was,
however, one notable exception, the chancellor, or royal secretary.
Regularly an ecclesiastic, so that there was no chance of his turning
the office into an hereditary fief, the nature of the chancellor’s
duties attached him continuously to the person of the sovereign and
made him the natural companion of the royal journeys. He was far,
however, from being a mere private secretary or amanuensis, but stood
at the head of a regular secretarial bureau, which had its clerks and
chaplains and its well-organized system of looking after the king’s
business. The study of the history of institutions goes to show that,
on the whole, there is no better test of the strength or weakness of a
mediæval government than its chancery. If it had no chancery, as was
the case under the early Norman dukes, or if its methods, as seen in
its formal acts, were irregular and unbusinesslike, as under Robert
Curthose, there was sure to be a lack of organization and continuity
in its general conduct of affairs. If, on the other hand, the chancery
was well organized, its rules and practices regularly observed, its
documents clear and sharp and to the point, this meant normally that an
efficient government stood behind it.
Now, judged by the most exacting standards, the chancery of Henry II
had reached a high degree of perfection. It has quite recently been
the subject of an elaborate study by the most eminent mediævalist of
our time, the late Léopold Delisle, who cannot restrain his admiration
for its regularity, its accuracy and finish, and the extraordinary
range and rapidity of its work. The documents issued in the name of
Henry II during his long reign of thirty-five years, says Delisle,[31]
“both for his English and his continental possessions, are all
drawn up on the same plan in identical formulæ and expressed with
irreproachable precision in a simple, clear, and correct style, which
is also remarkably uniform save for a small number of pieces which
show the hand of others than the royal officers.” If the judgment of
this master required support, I should be glad to confirm it from the
personal examination of some hundreds of Henry’s charters and writs.
Such uniformity, it should be observed, is evidence not only of the
extent and technical attainments of the chancery but of substantially
similar administrative conditions throughout the various dominions to
which these documents are addressed: officers, functions, legal and
administrative procedure are everywhere very much alike. Moreover,
a study of these charters reveals another fact of fundamental
importance. Even more significant than uniformity of procedure in a
chancery is the type of document issued, for since the strength of
government lies not in legislation but in administration, a sure index
of a state’s efficiency will be found in the extent and character of
its administrative correspondence. This test places the Norman empire
far in advance of any of its contemporaries. Every payment from the
treasury, every allowance of an account, every summons to the army,
every executive command or prohibition, was made by formal royal
writ--_per breve regis_, as we read page after page in the account
rolls. Of the many thousands of such writs issued in Henry’s reign,
exceedingly few have come down to us, but no one can read these, terse,
direct, trained down to bone and muscle, without realizing the keen
minds and the clear-cut administrative methods which they represent.
Take an example:[32]
H. Dei gratia rex Anglorum et dux Normannorum et Aquitanorum et
comes Andegavorum R. thesaurario et Willelmo Malduit et Warino
filio Giroldi camerariis suis salutem.
Liberate de thesauro meo XXV marcas fratribus Cartusie de illis L
marcis quas do eis annuatim per cartam meam.
Teste Willelmo de Sancte Marie Ecclesia. Apud Westmoster.
The purpose of these writs might, of course, vary--seize A of this
land; do right to B for that tenement; secure C in his possession;
bring your knights to such a place at such a time; summon twelve men to
decide D’s right;--but each has its appropriate form, which is always
crisp and exact. All speak the language of a strong, businesslike
administration which expected as a matter of course prompt and implicit
obedience throughout its broad dominions.
If such a system be given enough time, it will inevitably exert
a strong and persistent influence in favor of centralization and
uniformity, and it would be interesting to know just what was
accomplished in these directions during the half century of the Norman
empire’s existence. The parting advice which Henry had received
from his father Geoffrey was to avoid the transfer of customs and
institutions from one part of his realm to another, and the wisdom
of the warning was obvious under feudal conditions, if not in all
imperial governments. But there is a difference between the field of
local custom and the institutions of administration, and while even
in matters of feudal law there is some evidence of a generalization
of certain reforms in the rules of succession, in the conduct of
government it was impossible to keep the different parts of the
empire in water-tight compartments so long as there was a common
administration and frequent interchange of officials between different
regions. We must remember that Henry was a constant experimenter, and
that if a thing worked well in one place it was likely to be tried in
another. Thus the Assize of Arms and the ordinance for the crusading
tithe were first promulgated for his continental dominions, while the
great English inquest of knights’ fees in 1166 preceded by six years
the parallel Norman measure. The great struggle with Becket over the
church courts seems to have had a Norman prologue. The chronological
order in any given case might well be a matter of chance; but in
administrative matters the influence is likely to have travelled from
the older and better organized to the newer and more loosely knit
dominions, from England, Normandy, and Anjou on the one hand to Poitou,
Aquitaine, and Gascony on the other.
* * * * *
Of Henry’s hereditary territories, Anjou seems the least important from
the point of view of constitutional influence. Much smaller in area
than either Normandy or England, it was a compact and comparatively
centralized state long before Henry’s accession, but the opportunity
for immediate action on the count’s part simplified its government to
a point where its experience was of no great value under Anglo-Norman
conditions. Certainly no Angevin influence is traceable in the field
of finance, and none seems probable in the administration of justice.
In the case of Normandy and England the resemblance of institutions is
closest, and a host of interesting problems present themselves which
carry us back to the effects of the Norman Conquest and even further.
It is, of course, one of the fundamental problems of English history
how far the government of England was Normanized in the century
following the Conquest. To a French scholar like Boutmy everything
begins anew in 1066, when “the line which the whole history of
political institutions has subsequently followed was traced and
defined.”[33] To Freeman, on the other hand, the changes then
introduced were temporary and not fundamental. He is never tired of
repeating that the old English are the real English; progress comes
by going back to the principles of the Anglo-Saxon period and casting
aside innovations which have crept in in modern and evil times; “we
have advanced by falling back on a more ancient state of things, we
have reformed by calling to life again the institutions of earlier and
ruder times, by setting ourselves free from the slavish subtleties of
Norman lawyers, by casting aside as an accursed thing the innovations
of Tudor tyranny and Stewart usurpation.”[34] The trend of present
scholarly opinion lies between these extremes. It refuses to throw away
the Anglo-Saxon period, whose institutions we are just beginning to
read aright; but it rejects its idealization at Freeman’s hands, who,
it has been said, saw all things “through a mist of moots and witans”
and not as they really were, and it finds more truth in Carlyle’s
remark that the pot-bellied equanimity of the Anglo-Saxon needed the
drilling and discipline of a century of Norman tyranny.[35]
Whether he was needed much or little, the Norman drill-master came
and did his work, and when he had finished the two countries were in
many respects alike. He left his mark on the English language and on
English literature, which were submerged for three centuries under
the French of the court, the castle, and the town, and in the process
were permanently modified into a mixed speech. He left his mark on
architecture in the great cathedrals of the Norman bishops and the
massive castles with their Norman keeps. He made England a feudal
society, however far it may have gone in that direction before, and its
law, from that day to this, a feudal law. And he remade the central
government under the strong hand of a masterful dynasty which compelled
its subjects to will what the king willed. Whatever permanence we may
assign to Anglo-Saxon local institutions,--and we cannot help granting
them this in considerable measure,--it is not now held that there was
any notable Anglo-Saxon influence upon the central administration. At
best England before the Conquest was a loose aggregation of tribal
commonwealths divided by local feeling and by the jealousies of the
great earls, and its kingship did not grow stronger with process of
time. The national assembly of wise men, whose persistence Freeman
labored in vain to prove, became the feudal council of the Norman
barons, and this council, the _curia regis_, and the royal household
which was its permanent nucleus, became the starting-point of a new
constitutional development which produced the House of Lords, the
courts of law, and the great departments of the central administration.
* * * * *
Yet in a vigorous state central and local are never wholly separable,
and it is where they touch that recent study has been able to show some
continuity of development between the two periods, namely in the fiscal
system which culminated in the exchequer of the English kings. Of all
the institutions of the Anglo-Norman state, none is more important
and none more characteristic than the exchequer, illustrating as it
does at the same time the comparative wealth of the sovereigns and the
efficient conduct of their government. Nowhere in western Europe did a
king receive so large a revenue as here; nowhere was it collected and
administered in so regular and businesslike a fashion; nowhere do the
accounts afford so complete a view of “the whole framework of society.”
The main features of this system are simple and striking.
In every administrative district of Normandy and England the king
had an agent--in England the sheriff, in Normandy the _vicomte_ or
_bailli_--to collect his revenues, which consisted chiefly of the
income from lands and forests, the fees and fines in the royal courts,
the proceeds of the various feudal incidents, and the various payments
which there were from time to time levied under the name of Danegeld,
scutage, aid, or gift. Twice a year, at Easter and Michaelmas, these
agents were required to come to the treasury and render their accounts
to the king’s officers. At Easter the sheriff was expected to pay in
half of his receipts, receiving therefor down to 1826 a receipt in the
form of a notched stick or tally, split down the middle so that there
was exact agreement between the portion retained at the exchequer
and the portion carried off by the sheriff to be produced when the
accounts of the year were settled at Michaelmas. The great session
of the exchequer at Michaelmas was a very important occasion and is
described for us in detail in a most interesting contemporary treatise,
the _Dialogue on the Exchequer_, written by Richard the King’s
Treasurer, in 1178–79. There the sheriff met the great officials of the
king’s household who were also the great officers of the Anglo-Norman
state--the justiciar, chancellor, constable, treasurer, chamberlains,
and marshal, reënforced by clerks, tally-cutters, calculators, and
other assistants. The place and the institution took their names from
a chequered table or chess-board--the Latin name _scaccarium_ means a
chess-board--in size and shape not unlike a billiard table, covered
with cloth which was ruled off into columns for pence, shillings,
pounds, hundreds and thousands of pounds. On one side were set forth
in this graphic manner the sums which the sheriff was required to
pay, on the other he and his clerk tried to offset these with tallies,
receipts, warrants, and counters representing actual cash. Played with
skill and care on each side, for the stakes were high, this great match
was likened to a game of chess between the sheriff and the king’s
officers. Its results were recorded each year, district by district and
item by item, on a great roll, called the pipe roll from the pipes,
or skins of parchment sewed end to end, of which it was made up. For
England we have an unbroken series of these rolls from the second year
of Henry II, as well as an odd roll of Henry I, constituting a record
of finance and government quite unique in contemporary Europe. The
series was doubtless as complete for Normandy, but there survive from
Henry’s reign only the roll of 1180 and fragments of that of 1184. For
the other Plantagenet lands nothing remains.
This remarkable fiscal system comprised accordingly a regular method
of collecting revenue, a central treasury and board of account, and
a distinctive and careful mode of auditing the accounts. There was
nothing like it north of Sicily, and contemporaries admired it both for
its administrative efficiency and for the wealth and resources which it
implied. Although something of the sort seems to have existed in all
the territories of the Plantagenet empire and the different bodies seem
to have maintained a certain amount of coöperation, all our records
come from England and Normandy, and there can be no question that it
is distinctively an Anglo-Norman institution. Whether, however, it is
English or Norman in origin and how it came into existence, are still
in many respects obscure questions. The exchequer is not an innovation
of Henry II, for the surviving roll of Henry I and certain incidental
evidence show that it existed on both sides of the Channel in the reign
of his grandfather. In the time of the author of the _Dialogue_ there
was a tradition that it had been imported from Normandy by William
the Conqueror, but this must be discounted by the fact that certain
elements of the system can be traced in Anglo-Saxon England. The truth
is that the exchequer is a complicated institution, some parts of which
may be quite ancient and the results of parallel development on both
sides of the Channel; at least the problem of priority has reached
no certain solution. Its most characteristic feature, however, its
peculiar method of reckoning, does not seem either of Norman or English
origin, but derived from the abacus of the ancient Romans, as used and
taught in the continental schools of the eleventh and twelfth centuries.
One who tries to perform with Roman numerals a simple problem
in addition or subtraction--or better yet, in multiplication or
division--will have no difficulty in understanding why people
unacquainted with the Arabic system of notation have had recourse
to a counting-machine or abacus. The difficulty, of course, lies
not so much in the clumsy form of the individual Roman numbers as in
the absence of the zero and the reckoning by position which it makes
possible. This defect the abacus supplied. By means of a sanded board
or a cloth-covered table or a string of counters it provided a row
of columns each of which represented a decimal group--units, tens,
hundreds, etc.--by which numerical operations could be rapidly and
accurately performed. Employed by the ancient Romans, as by the modern
Chinese, the arithmetic of the abacus became a regular subject of
instruction in the schools of the Middle Ages, whence its reckoning was
introduced into the operations of the Anglo-Norman treasury. The most
recent student of the subject, Reginald Lane Poole, connects the change
with the Englishmen who studied at the cathedral school of Laon early
in the twelfth century. To me it seems somewhat earlier, brought by
abacists who came to England in the eleventh century from the schools
of Lorraine.[36] In either case its introduction was much more than a
change of bookkeeping. Convenient as such reckoning was in general, it
was the only possible method for men who could neither read nor write,
like the Anglo-Norman sheriffs and many of the royal officers, and
its use made it possible to carry on the fiscal business of the state
on a large scale, in an open and public fashion, with full justice
to all parties, and with accuracy, certainty, and dispatch. It was a
businesslike system for busy and businesslike men.
* * * * *
In the history of judicial administration the personal initiative of
Henry II is more evident than in finance. The king had an especial
fondness for legal questions and often participated in their decision,
yet his influence was exerted particularly to develop a system of
courts and judges which could work in his absence and without his
intervention. Although the institution is found previously both in
England and Normandy, it is in Henry’s reign that the system of
itinerant justices is fully organized with regular circuits and a
rapidly extending jurisdiction which broke down local privileges and
exemptions and by its decisions created the common law. Hitherto
chiefly a feudal assembly concerned with the causes of the king and
his barons, after Henry’s time the king’s court is a permanent body
of professional judges and a tribunal for the whole realm. It is
no accident that his reign produced in the treatise of Glanvill on
_The Laws and Customs of England_ the first of the great series of
textbooks which are the landmarks of English legal development. Henry’s
reign is also an important period in the growth of Norman law, the
earliest formulation of which reaches us ten years after his death in
the _Très Ancien Coutumier de Normandie_, and the reduction of local
custom to writing is a process which went on in his other continental
possessions; yet, as in finance, England and Normandy plainly took
the lead in legal literature and in legal development. Indeed, the
distinction between justice and finance is less sharp than we might at
first suppose, for the growth of jurisdiction meant increased profit
from fees and fines, and heavy payments were necessary to secure the
intervention of the royal judges. In this sense Henry has often been
called, and rightly, a seller of justice, but his latest biographer
has pointed out that “if the commodity was expensive it was at least
the best of its kind, and there is a profound gulf between the selling
of justice and of injustice. A bribe might be required to set the
machine of the law in motion, but it would be unavailing to divert its
course when once started.”[37] The wheels of government are turned by
self-interest as well as by unselfish statesmanship.
Of the many judicial reforms of Henry’s reign none is more significant
than the measures which he took for extending the use of the jury as
a method of trial in the royal courts, and none illustrates better
the relation of Norman to English institutions. Characteristic as the
jury is in the history of English government and of English law, as at
once the palladium of personal liberty and the basis of representative
institutions in Parliament, it is a striking fact that originally
it was “not popular but royal,” not English but Norman, or rather
Frankish through the intermediary of Normandy.[38] Although it has a
history which can be traced for more than a thousand years, the jury
does not definitely make its appearance in England until after the
Norman Conquest, and the decisive steps in its further development were
taken during the union of England and Normandy and probably as a result
of Norman experience. It is now the general opinion of scholars that
the modern jury is an outgrowth of the sworn inquests of neighbors held
by command of the Norman and Angevin kings, and that the procedure in
these inquests is in all essential respects the same as that employed
by the Frankish rulers three centuries before. It is also generally
agreed that while such inquests appear in England immediately after the
Norman Conquest,--the returns of the Domesday survey are a striking
example,--their employment in lawsuits remains exceptional until the
time of Henry II, when they become in certain cases a matter of right
and a part of the settled law of the land. What had been heretofore
a special privilege of the king and of those to whom he granted it,
became under Henry a right of his subjects and a part of the regular
system of justice. Accomplished doubtless gradually, first for one
class of cases and then for another, this extension of the king’s
prerogative procedure to his subjects seems to have been formulated in
a definite royal act or series of acts, probably by royal ordinances
or assizes, whence the procedure is often called the assize. In
England the earliest of these assizes known to us appears in 1164
in the Constitutions of Clarendon, followed shortly by applications
of this mode of trial to other kinds of cases. In Normandy repeated
references to similar assizes occur some years earlier, between 1156
and 1159, so that as far as present evidence goes, the priority of
Normandy in this respect is clear. Moreover, Normandy offers two
pieces of evidence that are still earlier. In the oldest cartulary of
Bayeux cathedral, called the _Black Book_ and still preserved high up
in one of its ancient towers, are two writs of the duke ordering his
justices to have determined by sworn inquest, in accordance with the
duke’s assize, the facts in dispute between the bishop of Bayeux and
certain of his tenants. The ducal initial was left blank when these
writs were copied into the cartulary, in order that it might later be
inserted in colors by an illuminator who never came; and those who
first studied these documents drew the hasty conclusion that they were
issued by Henry as duke of Normandy before he became king. It was not,
however, usual for the mediæval scribe to leave the rubricator entirely
without guidance when he came to insert his initials, but to mark the
proper letter lightly in the place itself or on the margin, and an
attentive examination of the well-thumbed margins of the Bayeux _Black
Book_ shows that this was no exception to the rule, and that in both
the cases in question the initial G had been carefully indicated. G
can, of course, stand only for Henry’s father Geoffrey, so that some
general use of the assize as a method of trial in the ducal courts can
be proved for his reign. As no such documents have reached us for his
predecessors, it would be tempting to assume the influence of Angevin
precedents; but this runs counter to what we know of the judicial
institutions of Anjou in this period, as well as of the policy of
Geoffrey in Normandy, which was to follow in all respects the system of
Henry I. Although the first general use of the sworn inquest as a mode
of trial thus antedates Henry II, it is still a Norman institution.
* * * * *