Henry the Second 7

Henry the Second 7

Amid all the intellectual activity which surrounded the English students

abroad it is, curious to note what they carried home with them across the

Channel, and what they left simply untouched. The zeal for learning

quickly showed itself in the growth of the Universities. As early as 1133

Robert Pulleyn was teaching Latin at Oxford. In 1149 Archbishop Theobald

brought to it Master Vacarius, a famous Lombard lawyer, who lectured on

the Civil law until he was expelled by Stephen, half fearful of the new

teaching and half influenced by the pressure of the older and more

conservative of the English bishops. There was much of the foreign

movement, however, which found no place in England. Difference of tongue

shut out Norman and Englishman from the influence of the new Provençal

poetry, and for a century to come England owed nothing to the finished

art of the South. The strip of sea which kept aloof all European tumults

shut out also the speculations in politics and government which were

making their way abroad. Even the religious movement which overran one

half of France under the Albigenses, or that which counted its followers

and martyrs by multitudes in Flanders never crossed the Channel, in spite

of the constant intercourse between the peoples; and missionaries from

Germany during the reign of Henry only succeeded in converting one poor

woman in England who immediately recanted. It was in other directions

that the energies of the people found their exercise. If Englishmen were

heedless of foreign philosophers, they were quick to notice that the

fruit of the vine had failed, and forthwith the unheard-of novelty of

taverns where beer and mead were sold sprang up in France, probably by

the help of those English traders whose beer was the marvel of Frenchmen.

 

It was these new conditions of the national life which constituted the

real problem of government--a problem far more slow and difficult to work

out than the mere suppression of a turbulent baronage. In the rapid

movement towards material prosperity, the energies of the people were in

all directions breaking away from the channels and limits in which they

had been so long confined. Rules which had been sufficient for the

guidance of a simple society began to break down under the new fullness

and complexity of the national life, and the simple decisions by which

questions of property and public order had been solved in earlier times

were no longer possible. Moreover, a new confusion and uncertainty had

been brought into the law in the last hundred years by the effort to fuse

together Norman and English custom. Norman landlord or Norman sheriff

naturally knew little of English law or custom, and his tendency was

always to enforce the feudal rules which he practised on his Norman

estates. In course of time it came about that all questions of land-tenure

and of the relations of classes were regulated by a kind of double system.

The Englishman as well as the Norman became the "man" of his lord as in

Norman law, and was bound by the duties which this involved. On the other

hand, the Norman as well as the Englishman held his land subject to the

customary burdens and rights recognized by English law. Both races were

thus made equal before the law, and no legal distinction was recognized

between conqueror and conquered. There was, however, every element of

confusion and perplexity in the theory and administration of the law

itself, in the variety of systems which were contending for the mastery,

and in the inefficiency of the courts in which they were applied. English

law had grown up out of Teutonic custom, into which Roman tradition had

been slowly filtering through the Dark Ages Feudal law still bore traces

of its double origin in the system of the Teutonic "comitatus" and of the

Roman "beneficium." Forest law, which governed the vast extent of the

king's domains, was bound neither by Norman forms nor by English

traditions, but was framed absolutely at the king's will. Canon law had

been developed out of customs and precedents which had served to regulate

the first Christian communities, and which had been largely formed out of

the civil law of Rome. There was a multitude of local customs which

varied in every hundred and in every manor, and which were preserved by

the jealousy that prevailed between one village and another, the strong

sense of local life and jurisdiction, and the strict adherence to

immemorial traditions.

 

These different codes of law were administered in various courts of

divers origins. The tenant-in-chief of the king who was rich enough had

his cause carried to the King's Court of barons, where he was tried by his

peers. The poorer vassals, with the mass of the people, sought such

justice as was to be had in the old English courts, the Shire Court held

by the sheriff, and, where this survived, the Hundred Court summoned by

the bailiff. The lowest orders of the peasant class, shut out from the

royal courts, could only plead in questions of property in the manor

courts of their lords. The governing bodies of the richer towns were

winning the right to exercise absolute jurisdiction over the burghers

within their own walls. The Forest courts were held by royal officers, who

were themselves exempt from all jurisdiction save that of the king. And

under one plea or another all men in the State were liable for certain

causes to be brought under the jurisdiction of the newly established

Church courts. This system of conflicting laws was an endless source of

perplexity. The country was moreover divided into two nationalities, who

imperfectly understood one another's customary rights; and it was further

broken into various classes which stood in different relations to the law.

Those who had sufficient property were not only deemed entirely

trustworthy themselves, but were also considered answerable for the men

under them; a second class of freeholders held property sufficient to

serve as security for their own good behaviour, but not sufficient to make

them pledges for others; there was a third and lower class without

property, for whose good conduct the law required the pledge of some

superior. In a state of things so complicated, so uncertain and so

shifting, it is hard to understand how justice can ever have been

secured; nor, indeed, could any general order have been preserved,

save for the fact that these early courts of law, having all sprung

out of the same conditions of primitive life, and being all more or

less influenced and so brought to some common likeness by the Roman

law, did not differ very materially in their view of the relations

between the subjects of the State, and fundamentally administered the

same justice. Until this time too there had been but little legal

business to bring before the courts. There was practically no commerce;

there was little sale of land; questions of property were defined within

very narrow limits; a mass of contracts, bills of exchange, and all the

complicated transactions which trade brings with it, were only beginning

to be known. As soon, however, as industry developed, and the needs of a

growing society made themselves felt, the imperfections of the old order

became intolerable. The rude methods and savage punishments of the law

grew more and more burdensome as the number of trials increased; and the

popular courts were found to be fast breaking down under the weight of

their own ignorance and inefficiency.

 

The most important of these was the Shire Court. It still retained its

old constitution; it preserved some tradition of a tribunal where the

king was not the sole fountain of justice, and the memory of a law which

was not the "king's law." It administered the old customary English

codes, and carried on its business by the old procedure. There came to it

the lords of the manors with their stewards, the abbots and priors of the

county with their officers, the legal men of the hundreds who were

qualified by holding property or by social freedom, and from every

township the parish priest, with the reeve and four men, the smiths,

farmers, millers, carpenters, who had been chosen in the little community

to represent their neighbours; and along with them stood the pledges, the

witnesses, the finders of dead bodies, men suspected of crime. The court

was, in fact, a great public meeting of the whole county; there was no

rank or order which did not send some of its number to swell the confused

crowd that stood round the sheriff. The criminal was generally put on his

trial by accusation of an injured neighbour, who, accompanied by his

friends, swore that he did not bring his charge for hatred, or for envy,

or for unlawful lust of gain. The defendant claimed the testimony of his

lord, and further proved his innocence by a simple or threefold

compurgation--that is, by the oath of a certain number of freemen among

his neighbours, whose property gave them the required value in the eye of

the law, and who swore together as "compurgators" that they believed his

oath of denial to be "clean and unperjured." The faith of the compurgator

was measured by his landed property, and the value of the joint-oath which

was required depended on a most intricate and baffling set of arithmetical

calculations, and differed according to the kind of crime, the rank of the

criminal, and the amount of property which was in dispute, besides other

differences dependent on local customs. Witnesses might also be called

from among neighbours who held property and were acquainted with the facts

to which they would "dare" to swear. The final judgment was given by

acclamation of the "suitors" of the court--that is, by the owners of

property and the elected men of the hundreds or townships; in other words,

by the public opinion of the neighbourhood. If the accused man were of bad

character by common report, or if he could find no friends to swear in his

behalf, "the oath burst," and there remained for him only the ordeal or

trial by battle, which he might accept or refuse at his own peril. In the

simple ordeal he dipped his hand in boiling water to the wrist, or carried

a bar of redhot iron three paces. If in consequence of his lord's

testimony being against him the triple ordeal was used, he had to plunge

his arm in water up to the elbow, or to carry the iron for nine paces. If

he were condemned to the ordeal by water, his death seems to have been

certain, since sinking was the sign of innocence, and if the prisoner

floated he was put to death as guilty. The other alternative, trial by

battle, which had been introduced by the Normans, was extremely unpopular

in England; it told hardly against men who were weak or untrained to arms,

or against the man of humble birth, who was allowed against his armed

opponent neither horse nor the arms of a knight, but simply a leathern

jacket, a shield of leather or wood, and a stick without knots or points.

 

At the beginning of the reign of Henry II, the Shire courts seem to have

been nearly as bad as they could be. Scarcely any attempt had been made,

perhaps none had till now been greatly needed, to improve a system which

had grown up in a dim and ruder past. The Norman kings, indeed, had

introduced into England a new method of deciding doubtful questions of

property by the "recognition" of sworn witness instead of by the English

process of compurgation or ordeal. Twelve men, who must be freemen and

hold property, were chosen from the neighbourhood, and as "jurors" were

sworn to state truly what they knew about the question in dispute, and

the matter was decided according to their witness or "recognition." If

those who were summoned were unacquainted with the facts, they were

dismissed and others called; if they knew the facts but differed in their

statement, others were added to their number, till twelve at least were

found whose testimony agreed together. These inquests on oath had

been used by the Conqueror for fiscal purposes in the drawing up of

Doomsday Book. From that time special "writs" from king or justice were

occasionally granted, by which cases were withdrawn from the usual modes

of trial in the local courts, and were decided by the method of

recognition, which undoubtedly provided a far better chance of justice

to the suitor, replacing as it did the rude appeal to the ordeal or to

battle by the sworn testimony of the chosen representatives, the good men