Henry the second 15

Henry the second 15

But the power which was taken from certain privileged classes and put in

the hands of the king was in effect by Henry's Assize given back to the

people at large. Foreigner as he was, Henry preserved to Englishmen an

inheritance which had been handed down from an immemorial past, and

which had elsewhere vanished away or was slipping fast into forgetfulness.

According to the Roman system, which in the next century spread over

Europe, all law and government proceeded directly from the king, and the

subject had no right save that of implicit obedience; the system of

representation and the idea of the jury had no place in it. Teutonic

tradition, on the other hand, looked upon the nation as a commonwealth,

and placed the ultimate authority in the will of the whole people; the

law was the people's law--it was to be declared and carried out in the

people's courts. At a very critical moment, when everything was shifting,

uncertain, transitional, Henry's legislation established this tradition

for England. By his Assize Englishmen were still to be tried in their

ancient courts. Justice was to be administered by the ancient machinery

of shire-moot and hundred-moot, by the legal men of hundred and township,

by the lord and his steward. The shire-moot became the king's court in

so far as its president was a king's judge and its procedure regulated

by the king's decree; but it still remained the court of the people, to

which the freemen gathered as their fathers had done to the folk-moot,

and where judgment could only be pronounced by the verdict of the

freeholders who sat in the court. The king's action indeed was determined

by a curious medley of chance circumstances and rooted prejudices. The

canon law was fast spreading over his foreign states, and wherever the

canon law came in the civil law followed in its train. But in England

local liberties were strong, the feudal system had never been completely

established, insular prejudice against the foreigner and foreign ways was

alert, the Church generally still held to national tradition, the king

was at deadly feud with the Primate, and was quite resolved to have no

customs favoured by him brought into the land; his own absolute power

made it no humiliation to accept the maxim of English lawyers that "the

king is under God and the law." So it happened that while all the other

civilized nations quietly passed under the rule of the Roman code England

alone stood outside it. From the twelfth century to the present day the

groundwork of our law has been English, in spite of the ceaseless

filtering in of the conceptions and rules of the civil law of Rome.

"Throughout the world at this moment there is no body of ten thousand

Englishmen governed by a system of law which was not fashioned by

themselves."

 

 

 

 

CHAPTER VII

 

 

THE STRIFE WITH THE CHURCH

 

The Assize of Clarendon was drawn up in February 1166, and in March

Henry sailed for France. Trouble awaited him there on every hand,

and during the next two years he had to meet no less than thirteen

revolts or wars. Aquitaine declared against the imperial system; loud

complaints were raised of Henry's contempt of old franchises and

liberties, and of the "officers of a strange race" who violated the

customs of the country by orders drawn up in a foreign tongue--the

_langue d'oil_, the speech of Norman and Angevin. Maine, Touraine,

and Britanny were in chronic revolt. The Welsh rose and conquered

Flint. The King of Scotland was in treaty with France. Warring parties

in Ireland claimed Henry's interference. England was uneasy and

discontented. Louis of France was allied with all Henry's enemies

--Gascons, Bretons, Welsh and Scotch; he aided the Count of Flanders and

the Count of Boulogne in preparing a fleet of six hundred ships to attack

the southern coast of England. The Pope's attitude was cautious and

uncertain. When Barbarossa's armies were triumphant in Italy, when

Henry's Italian alliances were strong and his bribes were big, Alexander

leaned to the king; when success again returned to Rome he looked with

more effectual favour on the demands of the archbishop. The rising tide

of disaffection tried the king sorely. It was in vain that he sought to

win over the leaders of the ecclesiastical party, the canon lawyers,

such as John of Salisbury, or Master Herbert of Bosham, with whom he

argued the point at his Easter Court at Angers. John of Salisbury flatly

rejected the Constitutions, declaring that his first obedience was due

to the Pope and the archbishop. Herbert was yet more defiant. "Look how

this proud fellow comes!" said Henry, as the stately Herbert entered in

his splendid dress of green cloth of Auxerre, with a richly trimmed

cloak hanging after the German fashion to his heels. He was no true

servant to the king, declared Herbert when he had seated himself, who

would allow him to go astray. As for the customs, there were bad enough

customs in other countries against the Church of God, but at least they

were not written down either in the lands of the King of France or of

the King of the Germans. "Why do you diminish his dignity?" hastily

demanded the king, "by not calling him the Emperor of the Germans?"

"The King of the Germans he is," retorted Herbert, "though when he writes,

he signs Imperator Romanorum semper Augustus_.'" "Shame!" cried the king,

"here is an outrage! Why should this son of a priest disturb my kingdom

and disquiet my peace?" "Nay," said Herbert, "I am not the son of a

priest, for it was after my birth my father became a priest; neither

is he the son of a king save one whom his father begat being king."

"Whosesoever son he may be," cried a baron who sat by, "I would give the

half of my land that he were mine!" Henry heard the words bitterly, and

held his peace; and in a few moments ordered the intractable Herbert

to depart.

 

The strife between Church and State was, in fact, taking every day a new

harshness. Gregory VII. a century earlier had suggested that kingly

power was of diabolic origin. "Who is ignorant that kings and princes

have their beginning in this, that knowing not God, they by rapine,

perfidy, and slaughter, the devil moving them, affect rule over their

equals-that is, over men, with blind greed and intolerable presumption."

But the papal theory of a vast Christian republic of all peoples, under

the leadership of Rome, found little favour with the kings of the rising

states which were beginning to shape themselves into the great powers of

modern Europe. Henry, steeped in the new temper, proposed a rival theory

of the origin of government. "Thou," he wrote to the Pope, "by the papal

authority granted thee by men, thinkest to prevail over the authority of

the royal dignity committed to me by God." The wisest of the churchmen of

England used more sober language than all this. "Ecclesiastical

dignity," wrote Ralph of Diceto, later the Dean of St. Paul's, "rather

advances than abolishes royal dignity, and the royal dignity is wont

rather to preserve than to destroy ecclesiastical liberty, for kings

have no salvation without the Church, nor can the Church obtain peace

without the protection of the king." To the fiery zeal of the archbishop,

on the other hand, the secular power was as "lead" compared to the fine

"gold" of the spiritual dignity. Henry, he cried loudly, was a "tyrant"-a

word which to medieval ears meant not an arbitrary or capricious ruler,

since that was the admitted right of every ruler, but a king who governed

without heeding the eternal maxims of the "law of nature," an idea which

theologians had borrowed from the theories of the ancient law of Rome,

and modified to mean the law of scripture or of the Church. But in the

arguments of Thomas this law took the narrowest proportions, with no wider

interpretation than that given by the pedantic temper of a fanatical

ecclesiastical politician. He fought his battles too often by violent

and vulgar methods, and Henry reaped the profit of his errors. How far

our national solution of the problem raised between Church and State might

have been altered or delayed if the claims of the Church had at this

moment been represented by a leader of supreme moral and spiritual

authority, it is hard to say. But Thomas was far from being at the highest

level of his own day in religious thought. When some years later the holy

Hugh of Lincoln forbade his archdeacons and their officers to receive

fines instead of inflicting penance for crimes, he was met by the

objection that the blessed archbishop and martyr Thomas himself had taken

fines. "Believe me," said Hugh, "not for that was he a saint; he showed

other marks of holiness, by another title he won the martyr's palm."

 

In the spring of 1166 Thomas was appointed Papal Legate for England, and

he at once used his new authority to excommunicate in June all the

king's chief agents--Richard of Ilchester, John of Oxford, Richard de

Lucy, Jocelyn of Bailleul--while the king himself was only spared for

the moment that he might have a little space for repentance. Rumour

asserted too that the Primate acted as counsellor to the foreign enemies

of England, declaring that he would either restore himself to his see or

take away Henry's crown. He saw with delight the growing irritation of

England under its sufferings after the Assize of Clarendon; ancient

prophecies of Merlin's which foretold disaster were on his lips, and he

grew yet more defiant in his sense of the king's impending ruin. The

pride and temper of Henry kept pace with those of Thomas. He became more

and more fierce and uncompromising. In answer to the excommunications he

forced the Cistercians in 1166, by threats of vengeance in England, to

expel Thomas from Pontigny. When papal legates arrived in 1167 with

proposals for mediation, he bluntly expressed his hope that he might

never see any more cardinals. His political activity was unceasing. He

completed the conquest of Britanny, and concluded a treaty of marriage

between his son Geoffrey and its heiress Constance. The Count of Blois

was won at a cost of £500 a year. Mortain was bought from the Count of

Boulogne. "Broad and deep ditches were made between France and Normandy."

A frontier castle was raised at Beauvoir. His second son Richard, then

twelve years old, was betrothed to Louis's daughter Adela; and his

daughter Eleanor to the King of Castile. He secured the friendship of

Flanders. He was busy building up a plan of Italian alliances and securing

the passes over the Alps. Milan, Parma, Bologna, Cremona, the Marquis of

Montferrat, the barons of Rome, all were won by his lavish pay. The

alliance of Sicily was established by the betrothal of his daughter with

its king. The states of the Pope were being gradually hemmed in between

Henry's allies to north and south. The threat of an imperial alliance was

added to hold his enemies in awe. In the spring of 1168 his eldest

daughter was married to the Emperor's cousin, Henry the Lion, the national

hero of Germany, second only to Barbarossa in power, Duke of Bavaria, Duke

of Saxony, Lord of Brunswick, and of vast estates in Northern Germany,

with claims to the inheritance of Tuscany and of the Lombard possessions

of the House of Este. For the purpose of a judicious threat, he even

entertained an imperial embassy which promised him armed help and urged

him to recognize the anti-Pope, whose first act, as both Henry and Thomas

well understood, would have been the deposition of the archbishop.

 

At last the moment seemed come, not only to win a peace with France, but

to carry out a long-cherished scheme for the ordering of the Angevin

Empire. He met the King of France at Montmirail on the feast of the

Epiphany, January 6, 1169, and the mighty Angevin ruler bowed himself

before his feebler suzerain lord to renew his homage. "On this day, my

lord king, on which the three kings offered gifts to the King of kings,

myself, my sons, and my land, I commend to your keeping." His continental

estates were divided among his sons, to be held under his supreme

authority. The eldest, Henry, who had in 1160 done homage to Louis for

Normandy, now did homage for Anjou, Maine, and Britanny. Richard received

Aquitaine, and Geoffrey was set over Britanny under his elder brother as

overlord. This division of Henry's dominions by no means implied any

intention on the king's part of giving up the administration of the

provinces. It was but the first step towards the realization of his

imperial system, by which he was to reign as supreme lord, surrounded by

the sub-rulers of his various provinces. Harassed as he had been with

ceaseless wars, from the Welsh mountains to the Pyrenees, he might well

believe that such a system would best provide for the defence of his

unwieldy states; "When he alone had the rule of his kingdom," as he said

later, "he had let nothing go of his rights; and now, when many were

joined in the government of his lands, it would be a shame that any part

of them were lost." In the difficulties of internal administration the

system might prove no less useful. That any serious difference of interest

could arise between himself and the sons whom he loved "more than a

father," Henry could never, then or afterwards, believe. He rather

trusted that a wise division of authority between them might secure

the administrative power in the royal house, and prevent the growth of

excessive influence among his ministers. But for all his hopes, the

treaty of Montmirail was in fact a crowning triumph for France; it was

virtually the first breaking up of the Empire, and had in it the seeds

of Henry's later ruin.

 

There was another side to the treaty. Henry and Thomas met at Montmirail

for the first time since the council of Northampton over four years

before, to renew a quarrel in which no terms of peace were possible. The

old hopeless dispute raged afresh, the king demanding a vow to obey the

"customs of the kingdom," Thomas insisting on his clause "saving my

order," "saving the honour of God." The former weary negotiations began

again; new envoys hurried backwards and forwards; interminable letters

argued the limits of the temporal and spiritual powers in phrases which

lost nothing of their arrogance from the fact that neither side

had the power to enforce their claims. The Primate would have no

counsels. "Believe me," Thomas wrote of Henry, "who know the manners

of the man, he is of such a disposition that nothing but punishment can

mend." He excommunicated the bishops of London and Salisbury and a number

of clerks and laymen, till in the chapel of the king there was scarcely

one who was able to give him the kiss of peace. Henry "shook with fear,"

according to the boast of Thomas, at the excommunications. In vain the

Pope sought to moderate his zeal. In the summer of 1169 two legates were

sent to settle the dispute, of whom one was pledged to the king and the

other to the archbishop. Henry, like every one else, saw the futility of

their mission, and "led them for a week," as one of them complained,

"through many windings both of road and speech." With a scornful taunt

that "he did not care an egg for them and their excommunications," he

finally mounted his horse to ride off from the conference. "I see,

I see!" he said to the frightened bishops who hurried after him to call

him back; "they will interdict my land, but surely I who can take the

strongest of castles in any single day, shall I not avail to scotch a

single clerk if he should interdict my land!" When a compromise seemed

possible, he suddenly added to the form of peace he had proposed

the words, "saving the dignity of my kingdom." This broke off all

negotiations. "The dignity of the kingdom," said Thomas, "was only a

softer name for the Constitutions of Clarendon." "If the king," said John of Salisbury, "had obtained the insertion of this clause, he had carried the royal customs, only changing the name."