LEGAL AND CONSTITUTIONAL HISTORY OF THE REIGN
The reign of Henry II. is of particular importance in English
constitutional and legal history. It was a period of evolution, of
crystallisation, a period of transition. As in architecture we have at
this time the transition from Norman, or Romanesque, to Gothic, so we
have the transition from oral tradition and custom to written law and
formula. As the Saxon blood was blending with the Norman to form the
English people, so Saxon law was assimilating Roman law and the theories
of the Canonists to form English law. The genius of Henry lay rather in
organisation than in initiative. Possessing an innate love of justice
and an instructed appreciation of legal forms, he set himself to evolve
method and order from the somewhat chaotic confusion of conflicting
customs. Under his hand the young plant of English law was pruned,
trained, and bent in the direction in which it was to grow during the
succeeding centuries. His natural inclination for the work was doubtless
whetted by the twofold consideration that every extension of the central
royal jurisdiction involved a diminution of local feudal jurisdiction
and that increase of legal control implied increase of revenue. The
personal part played by the king in the administration of the law was
striking. Constantly we find him sitting in a judicial capacity,
following with more or less patience the involved arguments of the
advocates, inspecting charters in dispute, criticising them shrewdly and
impartially, and exhibiting a legal acumen which proved that he was
worthy, apart from his rank, to preside over the ultimate court of
appeal.[38] The strong arm of the law could hardly be invoked without
his aid, and the slow foot of justice could only be hastened with his
assistance. And for such assistance payment must be made. Henry was,
indeed, notorious as a “seller of justice”; but 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. When John le Viel, a
wealthy citizen of London, was convicted of taking part in a series of
outrages which culminated in the murder of Earl Ferrers’ brother in
1177, his offer of 500 marks to the king gained him no reprieve and he
suffered the death penalty with his humbler and poorer accomplices.
It is partly owing to the personal predominance of the king as law-giver
that exact dates and details of the institution or formal adoption of
certain methods of legal procedure are hard to ascertain. A verbal
instruction or a few written lines to the justiciar would be enough to
establish a formula which would rapidly become a commonplace of law
without exciting comment from any chronicler. There are, however, some
four or five occasions on which a definite code of laws or regulations
was published and duly recorded. The first of these was the code drawn
up in 1164 to define the relations of Church and State. The
circumstances in which these “Constitutions of Clarendon” were drawn up
have already been considered. They were drawn up definitely as
representing the rules in force in the time of Henry I., and it would
seem that for the most part they could fairly claim this antiquity,
though their continuity had been broken by the disorder of Stephen’s
reign. That they lost something of their elasticity and became more
pronouncedly favourable to the secular courts when they were reduced to
writing can hardly be doubted, and that there was some small amount of
actual innovation is highly probable, but it is as compiler rather than
author that the name of Henry II. should be associated with the
Constitutions of Clarendon.
By these Constitutions it was asserted (cap. 1) that all actions
concerning the advowsons of churches should be heard in the king’s
court,[39] even if both parties were clerks, and that (cap. 2) the
king’s consent must be obtained before any church held in fee of the
crown could be granted in perpetuity. By a further assertion of the
royal proprietary rights (cap. 12) the king claimed to have the custody
and control of all sees, and of such monasteries as were in the
patronage of the crown, during their vacancies, and to determine when
their new heads should be elected. Whatever may be said against this
claim morally--and it certainly gave the king every inducement to
prolong such vacancies and leave a wealthy see or abbey headless--it was
undoubtedly a custom of respectable antiquity, based presumably on
analogy with the king’s feudal right to the custody of the lands of his
lay tenants-in-chief during the minority of their heirs. The identity of
status of lay and ecclesiastical tenants was insisted upon in the order
(cap. 11) that prelates and beneficed clergy who held of the king in
chief should hold their lands as baronies and perform the services due
therefrom, including the duty of sitting as judges on the Bench with the
lay barons, save that they should not take part in pronouncing sentence
of death or mutilation.
Besides pleas of advowsons all pleas of debt were now removed from the
ecclesiastical courts (cap. 15), even when involving breach of oath. A
third class of actions, those concerned with lands said to be granted in
alms to churches, involved a more elaborate procedure (cap. 9). If a
piece of land were claimed by a clerk as belonging to his church and by
a layman as belonging to his lay fee the question was first to be
referred to a jury of twelve men of good standing; if they decided that
the land was held in alms the case should be tried in the ecclesiastical
court, but if the contrary, then in the king’s court. The appearance of
this jury of twelve is very important, and it occurs again in the
Constitutions. Certain moral offences were admittedly the province of
the Court Christian, but it was common knowledge that the archdeacons
and their officials, whether from lack of legal training or of charity,
accepted accusations on very insufficient evidence; it was therefore
laid down (cap. 6) that such accusations ought not to be made against
laymen unless supported by responsible witnesses; but in cases where
witnesses dare not come forward, owing to the rank or power of the
accused, a jury of twelve men of good standing might be summoned to
inquire into the truth of the accusations.
In these two instances of the appointment of juries we have almost
certainly innovations, and it is to Henry II. that we must attribute the
institution of the trial by jury. It must be borne in mind that just as
these twelve jurors differed in everything but number from the
Anglo-Saxon “doomsmen,” whose office was to give sentence, so they also
differed from the modern jury. The modern juryman is supposed to start
with a completely open mind, and indeed in America even a remote and
superficial knowledge of the nature of the case to be tried has been
considered a disqualification; but the medieval jurors were men chosen
for their knowledge of the matter in dispute; they were witnesses--not
witnesses for the prosecution or for the defence, but, being summoned by
an impartial authority, witnesses for the truth; they answered the
questions put to them in the light of their personal knowledge and not
as a result of deductions from the deliberately misleading arguments of
rival advocates. The evolution and progress of legal procedure is always
interesting, and particularly so in the case of the peculiarly English
institution of the jury. The occasional appointment of juries of inquest
to settle special points may, of course, be traced back for generations,
but the definite establishment of the jury as a legal instrument dates
from the reign of Henry II.
The claims of the spiritual courts were complicated by possessing a
double basis; on the one hand they claimed all actions which could in
any way be held to be concerned with morals or with the property of the
Church, and on the other they claimed jurisdiction over all persons who
had been admitted to the ranks of the clergy. While admitting the theory
of clerical exemption in criminal cases Henry endeavoured to neutralise
it in practice. The suggested compromise, which was the chief bone of
contention between him and the Church party, was (cap. 3) that an
accused clerk should be summoned before the king’s court, and if a
_primâ facie_ case were made out against him he should be remitted to
the bishop’s court for fuller trial and sentence, the proceedings being
watched by one of the royal officials. If convicted he should _ipso
facto_ forfeit the Church’s protection and become amenable to the common
law. This latter proviso had to be abandoned, but within about a century
of the birth of the Constitutions the royal courts had established their
right to pronounce upon the guilt of an accused clerk before handing him
over to the ecclesiastical court. While the Church was claiming
exemption from lay justice it was natural that an endeavour should be
made in retaliation to limit the scope of the Church’s sentence, and
accordingly it was ordered (cap. 7) that no tenant-in-chief or royal
officer should be excommunicated without the king’s permission, and a
similar protection was extended (cap. 10) to all persons dwelling in a
royal borough, castle, or manor. In both cases it was expressly stated
that the king or his officials would endeavour to compel the offender to
make satisfaction, so obviating the necessity for excommunication, and
indeed it was laid down (cap. 13) that the royal and ecclesiastical
courts should give one another mutual assistance in bringing offenders
to book.
A further blow was aimed at clerical independence by the regulation
(cap. 8) that there should be appeals from the archdeacon’s court to
that of the bishop and thence to that of the archbishop, but that appeal
from the archbishop’s court should be to the king’s court and not to
Rome without royal consent. To prevent this rule being broken Henry
maintained (cap. 4) that prelates and beneficed clergy had no right to
leave the country without royal licence, and that in any case they must
swear to do nothing to the prejudice of king or realm during their
absence. The supremacy of the pope, however, proved to be too firmly
rooted in the minds of the clergy, and these articles had to be dropped,
Henry himself during the Becket controversy being obliged to resort to
constant appeals and counter-appeals to the papal court.
During the seven years’ struggle with Becket which followed the
promulgation of the Constitutions of Clarendon, Henry did not neglect
the cause of legal reform, and early in 1166 he issued an important
series of injunctions known as the Assize of Clarendon. These
injunctions, turning upon the existence of a system of itinerant
justices, whose presence in all parts of the country at frequent
intervals they take for granted, prove that the custom of sending
commissions of judges on circuit, which had been inaugurated by Henry
I., but had fallen almost out of use, and certainly out of all
regularity, under Stephen, had been restored by Henry II. The evidence
of the Pipe Rolls shows that during the early years of the reign most
of these “eyres,” or itinerant courts, were held by the leading royal
officers, such as the chancellor, the justiciar, or the Earl of Essex,
acting singly or together, but in 1176 the king divided the whole
country into six circuits and appointed three justices to each circuit.
For some reason this scheme did not work well, possibly from an excess
of zeal and self-importance on the part of the justices, and in 1179
Henry revoked these appointments and constituted a central royal court
of five justices; subsidiary to this permanent court he established four
circuits, the commission for each circuit being five judges, though, by
an apparent contradiction, the commissioners for the northern circuit
were the officers of the permanent central court. The arrangement of the
circuits varied from time to time and constant changes were made in the
personnel of the judges, but the main features of itinerant courts with
a permanent central court above them became fixed. From the central
court there was appeal in cases of difficulty to the king and
council.[40] As we have already said, Henry took a large personal share
in the administration of justice, but he acted strictly within
constitutional limits, and it was always the council that pronounced the
sentence, though the influence of the king’s expressed opinion would
naturally be paramount.
By the Assize of Clarendon it was ordered that the sheriffs and
itinerant justices should make careful search for evil-doers throughout
the country. Twelve men of good standing from each hundred and four from
each township were to declare on oath what men in their district were
known or suspected to be robbers, murderers, thieves, or harbourers of
bad characters. All such were at once to be arrested and brought before
the nearest justice and compelled to purge themselves by the ordeal of
water. In this ordeal the accused was bound hand and foot and thrown
into a pond or pit, of which the water had previously been consecrated
by a priest.[41] If the water rejected him, so that he floated, he was
considered guilty, his foot was struck off and his goods were forfeited
to the king; but if the water received him and he sank he was dragged to
land and his innocence was held to have been proved. But a sceptical
feeling towards the ordeal was growing up, and the Assize ordered that
if the repute of the accused were notoriously bad and the accusations
against him well sustained, then, even if he acquitted himself by the
ordeal, he should be banished from the country, being bound to leave
England within a week, or as soon after as the wind would serve.
By reserving all cases of this type to the jurisdiction of the king’s
courts and by authorising the sheriffs to enter any “liberty” or honour
for the purposes of arresting criminals or of supervising the police
organisation of frank pledges a severe blow was struck at the private
feudal courts, and, incidentally, the security of the law-abiding
populace was much increased. To strengthen this security yet more the
king gave orders for the erection of gaols in every county and for the
compilation of lists of fugitive criminals. No unknown wayfarer or
vagabond might stay for more than one night in any borough unless he or
his horse fell ill, and all newcomers settling in any county had to find
sureties for their appearance before the justices, while a final haven
of refuge was closed to the fugitive by the rule that no religious house
should receive into its fellowship any man of the lower class (_de
minuto populo_) without inquiry into his antecedents.
It is probably to this same year, 1166, that we may assign the Assize of
Novel Disseisin, by which possession became not merely nine-tenths of
the law but the law itself. Under this assize any person who was seised,
or possessed, of a freehold and was ejected therefrom, or disseised,
without a previous decision of the court, might recover his seisin by an
action before the king’s court, without regard to the goodness of his
original title. There is some reason to believe that this theory of the
right of the actual possessor to remain in possession until the claimant
had proved his better right to the property was recognised in the
previous reign, but it was under Henry II. that it took definite form as
a fixed method of legal procedure which formed the basis of innumerable
actions in later times. About this same date, too, we find evolving
another legal form which was to play a very important part in the
history of the conveyance of land. It is self-evident that from time to
time the parties concerned in a suit before the king’s court might find
it to their mutual advantage to come to a compromise. As this would
involve the abandoning of the suit, probably depriving the king of
certain perquisites of justice and certainly rendering nugatory the
trouble taken by the justices over the preliminaries of the trial, the
king’s leave to compromise had to be purchased, and frequently the terms
of the agreement were submitted to him for confirmation. To begin with,
these agreements, which from their putting an end to the suit were
called “final concords” or “fines,” would be drawn up casually,
expressing each particular composition in such phrases as seemed most
convenient, but the Justiciar Glanville, writing at the end of Henry’s
reign, lays down a definite formula to be used in drawing up a Fine, and
this formula can be traced back to 1172 and occurs, with slight
variations, as early as 1163,[42] though instances before 1180 are
rare. When these Fines acquired the recognised status of legal formulæ
steps were taken to preserve official copies of them, and as soon as it
was realised that the execution of a Fine was the surest way of securing
a permanent record of a conveyance of land, or similar deed, it became
the practice to bring fictitious actions with the express intention of
compromising them and executing Fines. The Fine was, therefore, at a
later date almost invariably the termination of a fictitious suit, but
there is no reason to believe that this was so in the time of Henry II.
to any great extent, and though we owe to him the formula of the Fine it
remained in his time a genuine act of compromise, and incidentally a
considerable source of revenue.
The administration of the Assize of Clarendon, especially of those
portions concerned with forfeitures and pecuniary penalties, seems to
have given rise to much complaint. The sheriffs were said on the one
hand to have used their power to extort more than was due and on the
other hand to have paid into the exchequer less than was due. Further
rumours of peculation in connection with the aid for the marriage of the
king’s daughter in 1168 having reached Henry’s ears, he suspended all
the sheriffs in 1170, and ordered a careful and minute inquiry into the
whole question. All moneys paid to sheriffs and other officials, or to
magnates and their stewards, during the past four years, were to be set
down, with a notice whether they were demanded with lawful warrant or
without. The value of the goods of convicted or fugitive felons and the
amounts paid towards the marriage aid were also to be returned, and note
was to be made of any bribes accepted by the sheriffs or hush-money
given by them. The inquiry was also to extend to breaches of the Forest
Law and the conduct of the officials administering it. The only
fragments of the returns[43] to this inquiry that are known to have
survived throw little light on the general conduct of the sheriffs and
their subordinates, though they illustrate the truth that taxation
always soaks through to the lowest stratum of society. Although taxation
under Henry did not fall with nearly so direct and crushing a force upon
the poor as under King Louis in France, the large sums extorted from the
English magnates had naturally to be raised by them in part from their
poorer tenants, and if the king expected his lords to make large “gifts”
of money to him it was natural that they should in turn impress upon
their subjects the duty of giving “willingly” to them.
One immediate result of this inquiry of 1170 was the substitution of men
from the ranks of the exchequer and court officials in place of local
magnates as sheriffs. The change was a wise one, increasing the skill
of administration and reducing the risk of extortion and undue use of
influence. The continuous undermining of the baronial authority, of
which this was but one more instance, had a double effect at the time of
the young king’s rebellion in 1173; on the one hand it drove the more
intolerant nobles to take up arms against King Henry, but on the other
it put in the king’s hand a powerful organisation controlled by loyal
officials, whose prospects were bound up with his own and supported by
the mass of the people, who had every reason to appreciate his rule and
to fear the victory of the feudal reactionaries. After the rebellion had
quieted down Henry issued, at Northampton in 1176, an assize of wider
scope than any other of his reign. The decrees of the Assize of
Clarendon were repeated but re-enforced; forgery and arson were added to
the Pleas of the Crown about which inquiry was to be made, and the
convicted felon was to lose a hand as well as a foot. Returns were to be
made of the escheats, churches, and heiresses who were in the king’s
gift, and the justices were to try actions brought under the Assize of
Novel Disseisin and were also given control of cases concerned with as
little as half a knight’s fee. Finally, an important regulation was laid
down that if a free tenant died his son and heir should at once have
such seisin of the freehold as his father had at the time of his death,
and the widow should have her dower. If the lord of the fee did not
admit the heir of the freehold the justices should cause an inquest to
be made by the jury of twelve men which had now become so integral a
part of legal procedure, and if they found that the father had died
seised the heir should recover possession. In this we have clearly the
first enunciation of the Assize of Mort d’Ancestor, which in course of
time was extended from the direct to the more remote degrees of kindred.
The work begun by the Assizes of Novel Disseisin and Mort d’Ancestor was
brought to a logical completion in 1179 by the institution of the Grand
Assize. By this assize any action concerning a freehold could be
transferred from the manorial to the royal court. The demandant in the
lower court was bound, as of old, to offer to prove his claim by the
judicial duel, a clumsy process entailing endless delays and expense and
the humiliation, if not death, of the defeated party, and often ending
in a way clearly contrary to justice. Now, by this new regulation, the
tenant when challenged might “put himself upon the assize”; the
demandant would then sue a writ in the king’s court, four knights would
be appointed to elect a jury of twelve knights, or country gentlemen as
we should call them, associated with the district in which the disputed
land lay. The jury had then to state from their own knowledge, or from
what their fathers had told them, which of the two parties had the
better claim to the land. If any of the jury did not know anything of
the matter they were discharged and others put in their place, and if
the knights were divided in opinion their numbers were increased until
twelve decided in favour of one party. Knowing, as we do from the Plea
Rolls of the next reign, how protracted a suit might be under this
assize, we can appreciate from Glanville’s encomium on the comparative
rapidity of the process how interminable must have been the proceedings
under the old methods. It was not only a great extension of the
influence of the king’s court, but was also a victory for common sense
and sound law, and the absurd and illogical ordeal by battle rapidly
fell into disuse, though it was not actually repealed in English law
until 1819 and is still retained for the settlement of international
quarrels.
The Grand Assize of 1179 is the last definite reform of Common Law
procedure that we can connect with Henry’s name, but in 1184 he issued
an Assize of the Forest. Under the Norman kings the doctrine of royal
rights over those unreclaimed woodlands, moors, and heaths which were
known as forests was rigorously asserted. Henry I., in particular, had
so stretched his claims as to exercise jurisdiction over the sporting
preserves of his barons, ignoring their rights and oppressing their
tenants by the application of the arbitrary regulations of the Forest
Law. Stephen had been compelled to relinquish all those forests which
had been created by Henry I., and to confine the claims of the crown to
those that were in existence at the time of the death of William Rufus,
but Henry II. had gradually reasserted his grandfather’s claims, though
not in their entirety. Henry himself was an ardent sportsman, finding in
hunting and hawking an outlet for his ceaseless activity of spirit, and
appears to have regarded poaching on the royal preserves as the most
heinous of all offences. From the beginning of his reign justices from
time to time toured the country inquiring into breaches of the Forest
Law and mulcting the offenders, and we have seen how in 1176 he bled the
whole country by a deliberate abuse of that same law, but it does not
seem that any definite code was drawn up until the assize was published
at Woodstock in 1184. Whether this was a stiffening of the laws in use,
as is generally assumed, or a relaxation, or merely a codification,
cannot be decided. In any case the laws, though severe, were less savage
than those of Henry I. The technical details of the regulations touching
the king’s forests and his subjects’ woods and coverts cannot here be
dealt with, but some of the devices to stop poaching may be noticed. No
one within the forest bounds might keep bows and arrows, dogs or hounds
without licence; hunting at night involved a year’s imprisonment and a
fine; all large dogs (_mastivi_) within the forest districts were to be
hambled, that is to say, lamed by cutting out the ball of the foot, to
prevent their chasing the deer, and no tanner or white tawer might ply
his trade within the forest bounds outside a borough. Finally every man
above twelve years of age within the forest district had to swear to
observe the laws; this applied also to all clerks holding lay fees, and
in many ways the most notable section of the assize is that which
definitely asserts the susceptibility of the clergy to the Forest Law
and authorises the royal officers to lay hands on clerical offenders.