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.