7. William's Norman Successors.

William Rufus has a bad name in history, and he fully deserves it.

But he had this merit: he held the Norman barons in check with a stiff

hand, and so, in one way, gave the country comparative peace.

His successor, Henry I, granted, 1100, a Charter of Liberties (S135,

note 1) to his people, by which he recognized the sacredness of the

old English laws for the protection of life and property. Somewhat

more than a century later this document became, as we shall see, the

basis of the most celebrated charter known in English history. Henry

attempted important reforms in the administration of the laws, and

laid the foundation of that system which his grandson, Henry II, was

to develop and establish. By these measures he gained the title of

the "Lion of Justice," who "made peace for both man and beast."

Furthermore, in an important controversy with the Pope respecting the

appointment of bishops (S136), Henry obtained the right (1107) to

require that both bishops and abbots, after taking possession of their

Church estates, should be obliged like the baron to furnish troops for

the defense of the kingdom.

But in the next reign--that of Stephen--the barons got the upper hand,

and the King was powerless to control them. They built castles

without royal license, and from these private fortresses they sallied

forth to ravage, rob, and murder in all directions. Had that period

of terror continued much longer, England would have been torn to

pieces by a multitude of greedy tyrants.

8. Reforms of Henry II; Scutage; Assize of Clarendon; Juries;

Constitutions of Clarendon.

With Henry II the true reign of law begins. To carry out the reforms

begun by his grandfather, Henry I, the King fought both barons and

clergy. Over the first he won a complete and final victory; over the

second he gained a partial one.

Henry began his work by pulling down the unlicensed castles built by

the "robber barons" in Stephen's reign. But, according to feudal

usage, the King was dependent on these very barons for his cavalry,--

his chief armed force. He resolved to make himself independent of

their reluctant aid. To do this he offered to release them from

military service, provided they would pay a tax, called "scutage," or

"shield money" (1159).[1] The barons gladly accepted the offer. With

the money Henry was able to hire "mercenaries," or foreign troops, to

fight for him abroad, and, if need be, in England as well. Thus he

struck a great blow at the power of the barons, since they, through

disuse of arms, grew weaker, while the King grew steadily stronger.

To complete the work, Henry, many years later (1181), reorganized the

old English national militia,[2] and made it thoroughly effective for

the defense of the royal authority. For just a hundred years (1074-

1174) the barons had been trying to overthrow the government; under

Henry II the long struggle came to an end, and the royal power

triumphed.

[1] Scutage: see S161. The demand for scutage seems to show that the

feudal tenure was now fully organized, and that the whole realm was by

this time divided into knights' fees,--that is, into portions of land

yielding 20 pounds annually,--each of which was obliged to furnish one

fully armed, well-mounted knight to serve the King (if called on) for

forty days annually.

[2] National militia: see SS96, 140.

But in getting the military control of the kingdom Henry had won only

half of the victory he was seeking; to complete his supremacy over the

powerful nobles, the King must obtain control of the administration of

justice.

In order to do this more effectually, Henry issued the Assize of

Clarendon (1166). It was the first true national code of law ever put

forth by an English king, since previous codes had been little more

than summaries of old "customs." The realm had already been divided

into six circuits, having three judges for each circuit. The Assize

of Clarendon gave these judges power not only to enter and preside

over every county court, but also over every court held by a baron on

his manor. This put a pretty decisive check to the hitherto

uncontrolled baronial system of justice--or injustice--with its

private dungeons and its private gibbets. It brought everything under

the eye of the King's judges, so that those who wished to appeal to

them could now do so without the expense, trouble, and danger of a

journey to the royal palace.

Again, it had been the practice among the Norman barons to settle

disputes about land by the barbarous method of Trial by Battle (S148);

Henry gave tenants the right to have the case decided by a body of

twelve knights acquainted with the facts.

In criminal cases a great change was likewise effected. Henceforth

twelve men from each hundred, with four from each township,--sixteen

at least,--acting as a grand jury, were to present all suspected

criminals to the circuit judges.[3] The judges sent them to the Ordeal

(S91); if they failed to pass it, they were then punished by law as

convicted felons; if they did pass it, they were banished from the

kingdom as persons of evil repute. After the abolition of the Ordeal

(1215), a petty jury of witnesses was allowed to testify in favor of

the accused, and clear them if they could from the charges brought by

the grand jury. If their testimony was not decisive, more witnesses

were added until twelve were obtained who could unanimously decide one

way or the other. In the course of time[1] this smaller body became

judges of the evidence for or against the accused, and thus the modern

system of Trial by Jury was established about 1350.

[3] See the Assize of Clarendon (1166) in Stubbs's "Select Charters."

[1] The date usually given is 1350; but as late as the reign of

George I juries were accustomed to bring in verdicts determined partly

by their own personal knowledge of the facts. See Taswell-Langmead

(revised edition), p.179.

These reforms had three important results: (1) they greatly dimished

the power of the barons by taking the administration of justice, in

large measure, out of their hands; (2) they established a more uniform

system of law; (3) they brought large sums of money, in the way of

court fees and fines, into the King's treasury, and so made him

stronger than ever.

But meanwhile Henry was carrying on a still sharper battle in his

attempt to bring the Church courts--which William I had separated from

the ordinary courts--under control of the same system of justice. In

these Church courts any person claiming to belong to the clergy had a

right to be tried. Such courts had no power to inflict death, even

for murder. In Stephen's reign many notorious criminals had managed

to get themselves enrolled among the clergy, and had thus escaped the

hanging they deserved. Henry was determined to have all men--in the

circle of clergy or out of it--stand equal before the law. Instead of

two kinds of justice, he would have but one; this would not only

secure a still higher uniformity of law, but it would sweep into the

King's treasury may fat fees and fines which the Church courts were

then getting for themselves.

By the laws entitled the "Constitutions of Clarendon," 1164 (S165),

the common courts were empowered to decide whether a man claiming to

belong to the clergy should be tried by the Church courts or not. If

they granted him the privilege of a Church-court trial, they kept a

sharp watch on the progress of the case; if the accused was convicted,

he must then be handed over to the judges of the ordinary courts, and

they took especial pains to convince him of the Bible truth, that "the

way of the transgressor is hard." For a time the Constitutions were

rigidly enforced, but in the end Henry was forced to renounce them.

Later, however, the principle he had endeavored to set up was fully

established.[2]

[2] Edward I limited the jurisdiction of the Church courts to purely

spiritual cases, such as heresy and the like; but the work which he,

following the example of Henry II, had undertaken was not fully

accomplished until the fifteenth century.

The greatest result springing from Henry's efforts was the training of

the people in public affairs, and the definitive establishment of that

system of Common Law which regards the people as the supreme source of

both law and government, and which is directly and vitally connected

with the principle of representation and of trial by jury.[3]

[3] See Green's "Henry II," in the English Statesmen Series.

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