henry the second 15

henry the second 15

practically implied that the man was held guilty by the public report of

his own neighbourhood, and he was therefore forbidden such chance of

escape as compurgation or the less dangerous forms of ordeal might have

afforded, and was sent to the almost certain condemnation of the ordeal

by water; if by some rare fortune he should escape from this alive he

was banished from the kingdom as a man of evil reputation. All freemen

were ordered to attend the courts held by the justices. The judges were

given power to enter on all estates of the nobles, to see that the men

of the manor were duly enrolled under the system of "frank-pledge," in

groups of ten men bound to answer for one another as "pledges" for all

purposes of police. Strict rules were made to prevent the possible

escape of criminals. The sheriffs were ordered to aid one another in

carrying the hue and cry after them from one country to another; no

"liberty" or "honour" might harbour a malefactor against the king's

officers; sheriffs were to give to the justices in writing the names of

all fugitives, so that they might be sought through all England;

everywhere jails, in which doubtful strangers or suspected rogues might

be shut up for safe keeping in case the "hue and cry" should be raised

after them, were to be made or repaired with wood from the king's or the

nearest landowner's domains; no man might entertain a stranger for whom

he would not be answerable before the justices; the old English law was

again repeated in the very words of ancient times, that none might take

into his house a waif or wanderer for more than one night unless he or

his horse were sick; and if he tarried longer he must be kept until he

were redeemed by his lord or could give safe pledges; no religious house

might receive any of the mean people into their body without good

testimony as to character unless he were sick unto death; and heretics

were to be treated as outlaws. These last indeed were not very plentiful

in England, and the over-anxious legislators seem only to have had in

view a little band of German preachers, who had converted one woman, and

who had themselves at a late council at Oxford been branded, flogged,

and driven out half-naked, so that there was by this time probably not

one who had not perished in the cold.

 

Such was the series of regulations that opened the long course of

reforms by which English law has been built up. Two judges were sent

during the next spring and summer through the whole of England. The

following year there was a survey of the forests, and in 1168 another

circuit of the shires was made by the barons of the Exchequer. Year by

year with unbroken regularity the terrible visitation of the country by

the justices went on. The wealth of the luckless people poured into the

king's treasury; the busy secretaries recorded in the Rolls a mass of

profits unknown to the accounts of earlier days. The great barons who

presided over the Shire courts found themselves practically robbed of

power and influence. The ordinary courts fell into insignificance beside

those summoned by the king's judges, thronged as they were with the

crowd of rich and poor, trembling at the penalty of a ruinous fine for

non-attendance or full of a newly-kindled hope of justice. Important

cases were more and more withdrawn from the sheriffs and given to the

justices. They entered the estates of the nobles, even the franchises,

liberties, and manors which had been freed from the old courts of the

shire or hundred; they reviewed their decisions and interfered with their

judgments. It is true that the system established in principle was but

gradually carried into effect, and the people long suffered the tyranny

of lords who maintained their own prisons. Half a century later we find

sturdy barons setting up their tumbrils and gallows. In the reign of

Edward I. there were still thirty-five private gallows in Berkshire

alone, and when one of them was by chance or age broken down, and the

people refused to set it up again, the baron could still make shift with

the nearest oak. But as a system of government, feudalism was doomed from

the day of Henry's Assize, and only dragged out a lingering existence

till the legislation of Edward I. dealt it a final blow.

 

The duties of police were at that time performed by the whole population,

and the judges' circuits brought home sharply to every man the part he

was expected to play in the suppression of crime. Juries were fined if

they had not "presented" a due amount of criminals; townships were fined

if they had not properly pursued malefactors; villages were fined if a hut

was burned down and the hue and cry was not raised, or if a criminal who

had fled for refuge to their church escaped from it. A robber or murderer

must be paid for by his "pledge," or if he had no pledge, a fine fell on

his village or township; if a dead body were found and the slayer not

produced, the hundred must pay for him, unless a legal form, called

"proving his Englishry," could be gone through--a condition which was

constantly impossible; the township was fined if the body had been buried

before the coming of the coroner; abbot or knight or householder was

heavily taxed for every crime of serf or hired servant under him, or even

for the offences of any starving and worn-out pilgrim or traveller to

whom he had given a three days' shelter.. In the remotest regions of the

country barons and knights and freeholders were called to aid in carrying

out the law. The "jurors" must be ready at the judges' summons wherever

and whenever they were wanted. They must be prepared to answer fully for

their district; they must expect to be called on all sorts of excuses to

Westminster itself, and no hardships of the journey from the farthest

corner of the land might keep them back. The "knights of the shire" were

summoned as "recognitors" to give their testimony in all questions of

property, public privilege, rights of trade, local liberties, exemption

from taxes; if the king demanded an "aid" for the marriage of his daughter

or the coming of age of his son, they assessed the amount to be paid; if

he wanted to count an estate among the royal Forests, it was they who

decided whether the land was his by ancient right. They were employed

too in all kinds of business for the Court; they might be sent to

examine a criminal who had fled to the refuge of a church, or to see

whether a sick man had appointed an attorney, or whether a litigant who

pleaded illness was really in bed without his breeches. If in any case

the verdict of the Shire Court was disputed, they were summoned to

Westminster to repeat the record of the county. No people probably ever

went through so severe a discipline or received so efficient a training

in the practical work of carrying out the law, as was given to the

English people in the hundred years that lay between the Assize of

Clarendon in 1166 and the Parliament summoned by De Montfort in 1265,

where knights from every shire elected in the county court were called

to sit with the bishops and great barons in the common Parliament of the

realm.

 

In the pitiless routine of their work, however, the barons of the

Exchequer were at this early time scarcely regarded as judges administering

justice so much as tax-gatherers for a needy treasury. Baron and churchman

and burgher alike saw every question turn to a demand of money to swell

the royal Hoard; jurors were fined for any trifling flaw in legal

procedure; widows were fined for leave to marry, guardians for leave to

receive their wards; if a peasant were kicked by his horse, if in fishing

he fell from the side of his boat, or if in carrying home his eels or

herrings he stumbled and was crushed by the cart-wheel, his wretched

children saw horse or boat or cart with its load of fish which in older

days had been forfeited as "deodand" to the service of God, now carried

off to the king's Hoard; if a miller was caught in the wheel of his mill

the sheriff must see the price of it paid to the royal treasury. In the

country districts where coin was perhaps scarcely ever seen, where

wages were unknown, and such little traffic as went on was wholly a

matter of barter, the peasants must often have been put to the greatest

straits to find money for the fines. Year after year baron as well as

peasant and farmer saw his waggons and horses, or his store of honey,

eggs, loaves, beer, the fish from his pond or the fowls from his yard,

claimed by the purveyors who provided for the judges and their followers,

and paid for by such measures and such prices as seemed good to the greedy

contractors. The people at large groaned under the heavy burden of fines

and penalties and charges for the maintenance of an unaccustomed justice.

When in the visitations of 1168 the judges had to collect, besides the

ordinary dues, an "aid" for the marriage of the king's eldest daughter,

the unhappy tax-payers, recognizing in their misery no distinctions,

attributed all their sufferings to the new reform, and saw in their king

not a ruler who desired righteous judgment, but one who only thirsted

after gain. The one privilege which seemed worth fighting for or worth

buying was the privilege of assessing their own fines and managing their

own courts. Half a century later we see the prevailing terror at a visit

of the judges to Cornwall, when all the people fled for refuge to the

woods, and could hardly be compelled or persuaded to come back again.

Yet later the people won a concession that in time of war no circuits

should be held, so that the poor should not be utterly ruined.

 

Oppression and extortion had doubtless been well known before, when the

sheriff carried on the administration of the law side by side with the

lucrative business of "farming the shires;" but it was at least an

irregular and uncertain oppression. The sheriff might himself at any

moment share the fate of one of his own victims and a more merciful man

stand in his place; in any case bribes were not unavailing, and there

was still an appeal to the king's justice. But against the new system

there was no appeal; it was orderly, methodical, unrelenting; it was

backed by the whole force of the kingdom; it overlooked nothing; it

forgot nothing; it was comparatively incorruptible. The lesser courts,

with their old clumsy procedure, were at a hopeless disadvantage before

the professional judges, who could use all the new legal methods. If a

man suffered under these there was none to plead his cause, for in all

the country there was not a single trained lawyer save those in the

king's service. However we who look back from the safe distance of seven

hundred years may see with clearer vision the great work which was done

by Henry's Assize, in its own day it was far from being a welcome

institution to our unhappy forefathers. There was scarcely a class in

the country which did not find itself aggrieved as the king waged war

with the claims of "privilege" to stand above right and justice and truth.

But all resistance of turbulent and discontented factions was vain.

The great justiciars at the head of the legal administration, De

Lucy and Glanville, steadily carried out the new code, and a body of

lawyers was trained under them which formed a class wholly unknown

elsewhere in Europe. Instead of arbitrary and inflicting decisions,

varying in every hundred and every franchise according to the fashion of

the district, the judges of the Exchequer or Curia Regis declared

judgments which were governed by certain general principles. The

traditions of the great administrators of Henry's Court were handed down

through the troubled reigns of his sons; and the whole of the later

Common law is practically based on the decisions of two judges whose

work was finished within fifty years of Henry's death, and whose labours

formed the materials from which in 1260 Bracton drew up the greatest

work ever written on English law.

 

There was, in fact, in all Christendom no such system of government or

of justice as that which Henry's reforms built up. The king became the

fountain of law in a way till then unknown. The later jealousy of the

royal power which grew up with the advance of industrial activity, with

the growth of public opinion and of its means of expressing itself, with

the development of national experience and national self-dependence, had

no place in Henry's days, and had indeed no reason for existence. The

strife for the abolition of privileges which in the nineteenth century

was waged by the people was in the twelfth century waged by the Crown.

In that time, if in no other, the assertion of the supreme authority of

the king meant the assertion of the supreme authority of a common law;

and there was, in fact, no country in Europe where the whole body of the

baronage and of the clergy was so early and so completely brought into

bondage to the law of the land. Since all courts were royal courts,

since all law was royal law, since no justice was known but his, and its

conduct lay wholly in the hands of his trained servants, there was no

reason for the king to look with jealousy on the authority exercised by

the law over any of his officers or servants. It may possibly be due to

this fact that in England alone, of all countries in the world, the

police, the civil servants, the soldiers, are tried in the same courts

and by the same code as any private citizen; and that in England and

lands settled by English peoples alone the Common law still remains the

ultimate and only appeal for every subject of the realm.