Henry the Second 8

Henry the Second 8

The business of the larger courts, too, was for the most part carried on

in French under sheriff, or bailiff, or lord of the manor. The Norman

nobles did not know Latin, they were but gradually learning English; the

bulk of the lesser clergy perhaps spoke Latin, but did not know Norman;

the poorer people spoke only English; the clerks who from this time began

to note down the proceedings of the king's judges in Latin must often

have been puzzled by dialects of English strange to him. When each side

in a trial claimed its own customary law, and neither side understood the

speech of the other, the president of the court had every temptation to

be despotic and corrupt, and the interpreter between him and his suitors

became an important person who had much influence in deciding what mode

of procedure was to be followed. The sheriff, often holding a hereditary

post and fearing therefore no check to his despotism, added to the burden

of the unhappy freeholders by a custom of summoning at his own fancy

special courts, and laying heavy fines on those who did not attend them.

Even when the law was fairly administered there was a growing number of

cases in which the rigid forms of the court actually inflicted injustice,

as questions constantly arose which lay far outside the limits of the old

customary law of the Germanic tribes, or of the scanty knowledge of Roman

law which had penetrated into other codes. The men of that day looked too

often with utter hopelessness to the administration of justice; there was

no peril so great in all the dangers that surrounded their lives as the

peril of the law; there was no oppression so cruel as the oppression

wrought by the harsh and rigid forms of the courts. From such calamities

the miserable and despairing victims could look for no help save from the

miraculous aid of the saints; and society at that time, as indeed it has

been known to do in later days, was for ever appealing from the iniquity

of law to God,--to a God who protected murderers if they murdered Jews,

and defended robbers if they plundered usurers, who was, indeed, above

all law, and was supposed to distribute a violent and arbitrary justice,

answering to the vulgar notion of an equity unknown on earth.

 

We catch a glimpse of a trial of the time in the story of a certain

Ailward, whose neighbour had refused to pay a debt which he owed him.

Ailward took the law into his own hands, and broke into the house of his

debtor, who had gone to the tavern and had left his door fastened with

the lock hanging down outside, and his children playing within. Ailward

carried off as security for his debt the lock, a gimlet, and some tools,

and a whetstone which hung from the roof. As he sauntered home, however,

his furious neighbour overtook him, having heard from the children what

had been done. He snatched the whetstone from Ailward's hand and dealt

him a blow on the head with it, stabbed him in the arm with a knife, and

then triumphantly carried him to the house which, he had robbed, and

there bound him as "an open thief" with the stolen goods upon him. A

crowd gathered round, and an evil fellow, one Fulk, the apparitor, an

underling of the sheriff employed to summon criminals to the court,

remarked that as a thief could not legally be mutilated unless he had

taken to the value of a shilling, it would be well to add a few articles

to the list of stolen goods. Perhaps Ailward had won ill-fame as a

creditor, or even, it may be, a money-lender in the village, for his

neighbours clearly bore him little goodwill. The crowd readily consented.

A few odds and ends were gathered--a bundle of skins, gowns, linen, and

an iron tool,--and were laid by Ailward's side; and the next day, with

the bundle hung about his neck, he was taken before the sheriff and the

knights, who were then holding a Shire Court. The matter was thought

doubtful; judgment was delayed, and Ailward was made fast in Bedford

jail for a month, till the next county court. There the luckless man sent

for a priest of the neighbourhood, and confessing his sins from his youth

up, he was bidden to hope in the prayers of the blessed Virgin and of all

the saints against the awful terrors of the law, and received a rod to

scourge himself five times daily; while through the gloom shone the

glimmer of hope that having been baptized on the vigil of Pentecost,

water could not drown him nor fire burn him if he were sent to the

ordeal. At last the month went by and he was again carried to the Shire

Court, now at Leighton Buzzard. In vain he demanded single combat with

Fulk, or the ordeal by fire; Fulk, who had been bribed with an ox,

insisted on the ordeal of water, so that he should by no means escape.

Another month passed in the jail of Bedford before he was given up to be

examined by the ordeal. Whether he underwent it or whether he pleaded

guilty when the judges met is uncertain, but however this might be, "he

received the melancholy sentence of condemnation; and being taken to the

place of punishment, his eyes were pulled out and he was mutilated, and

his members were buried in the earth in the presence of a multitude of

persons."

 

Nor was there for the mass of the people any real help or security to be

found in an appeal to the supreme tribunal of the realm where the king

sat in council with his ministers. This still remained a tribunal of

exceptional resort to which appeals were rare. There was one Richard

Anesty, who, in these first years of Henry's reign, desired to prove in

the King's Court his right to hold a certain property. For five years

Richard, his brother, and a multitude of helpers, were incessantly busied

in this arduous task. The court followed the king, and the king might be

anywhere from York to the Garonne. The unhappy suitor might well have

joined in a complaint once made by a secretary of Henry in search of his

master: "Solomon saith there be three things difficult to be found out,

and a fourth which may hardly be discovered: the way of an eagle in the

air; the way of a ship in the sea; the way of a serpent on the ground;

and the way of a man in his youth. I can add a fifth: the way of a king

in England." The whole business now done by post had then to be carried

on by laborious journeyings, in which we hear again and again that horses

died on the road; if a writ were needed from king or queen, if the royal

seal were required, or a certificate from a bishop, or a letter from an

archbishop, special messengers posted across country; then the writ must

be carried in the same way to York, Lincoln, or elsewhere to be examined

by some famous lawyer, sometimes an Italian learned in the last legal

fashions of the day; perhaps it was pronounced faulty, or it might be

that the seal of justiciar or archbishop was refused on its return from

the lawyer, and the same business had to begin all over again; twice

messengers had to be sent to Rome, the journey each way taking at least

forty days of incessant and dangerous travelling. When at last the

appointed day for judgment by the justiciar came, friends, helpers, and

witnesses had to be called together in the same laborious way, and

transported at great cost to the place of trial, and there kept waiting

till news was brought that the plea could not then be heard; and thus

again and again the luckless suitor was summoned, each time to a

different town in England. In every town he was forced by his necessities

to borrow money from some Jew, who demanded about eighty-seven per cent

for the loan; and when at last, as Richard was worn out with the delays

of justiciars, Henry appeared on the scene, and, "thanks to our lord the

king," the land was adjudged to the suitor, he had to raise fresh money

to fee the lawyers, the bishop's staff, the officers of the King's Court,

the king's physicians, the king and queen, besides the sums which must be

given to his helpers and pleaders. The end of the story leaves him

mournfully counting up a long list of Jewish creditors, who bid fair to

exhaust the profits of his new possessions.

 

Such were in brief outline some of the difficulties which made order and

justice hard to win. Society was helpless to protect itself: news spread

slowly, the communication of thought was difficult, common action was

impossible. Amid all the shifting and half understood problems of

medieval times there was only one power to which men could look to protect

them against lawlessness, and that was the power of the king. No external

restraints were set upon his action; his will was without contradiction.

The medieval world with fervent faith believed that he was the very spring

and source of justice. In an age when all about him was changing, and when

there was no organized machinery for the administration of law, the king

had himself to be judge, lawgiver, soldier, financier, and administrator;

the great highways and rivers of the kingdom were in "his peace;" the

greater towns were in his demesne; he was guardian of the poor and

defender of the trader; he was finance minister in a society where

economic conditions were rapidly changing; here presented a developed

system of law as opposed to the primitive customs of feud and private war;

he was the only arbiter of questions that grew out of the new conflict of

classes and interests; he alone could decree laws at his absolute will and

pleasure, and could command the power to carry out his decrees; there was

not even a professional lawyer who was not in his court and bound to his

service.

 

Henry saw and used his opportunity. Even as a youth of twenty-one he

assumed absolute control in his courts with a knowledge and capacity which

made him fully able to meet trained lawyers, such as his chancellor,

Thomas, or his justiciar, De Lucy. Cool, businesslike, and prompt, he set

himself to meet the vast mass of arrears, the questions of jurisdiction

and of disputed property, which had arisen even as far back as the time of

Henry I., and had gone unsettled through the whole reign of Stephen, to

the ruin and havoc of the lands in question. He examined every charter

that came before him; if any was imperfect he was ready to draw one up

with his own hand; he watched every difficult point of law, noted every

technical detail, laid down his own position with brief decision. In the

uncertain and transitional state of the law the king's personal

interference knew scarcely any limits, and Henry used his power freely.

But his unswerving justice never faltered. Gilbert de Bailleul, in some

claim to property, ventured to make light of the charter of Henry I., by

which it was held. The king's wrath blazed up. "By the eyes of God," he

cried, "if you can prove this charter false, it would be worth a thousand

pounds to me! If," he went on, "the monks here could present such a

charter to prove their possession of Clarendon, which I love above all

places, there is no pretence by which I could refuse to give it up to

them!"

 

It is hard to realise the amazing physical endurance and activity which

was needed to do the work of a medieval king. Henry was never at rest. It

was only by the most arduous labour, by travel, by readiness of access to

all men, by inexhaustible patience in weighing complaint and criticism,

that he learned how the law actually worked in the remotest corners of

his land. He was scarcely ever a week in the same place; his life in

England was spent in continual progresses from south to north, from east

to west. The journeyings by rough trackways through "desert" and swamp

and forest, through the bleak moorlands of the Pennine Hills, or the

thickets and fens that choked the lower grounds, proved indeed a sore

trial for the temper of his courtiers; and bitter were the complaints of

the hardships that fell to the lot of the disorderly train that swept

after the king, the army of secretaries and lawyers, the mail-clad

knights and barons followed by their retainers, the archbishop and his

household, bishops and abbots and judges and suitors, with the "actors,

singers, dicers, confectioners, huxters, gamblers, buffoons, barbers, who

diligently followed the court." Knights and barons and clerks, accustomed

to the plenty and comfort of palace and castle, found themselves at the

mercy of every freak of the king's marshals, who on the least excuse