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Henry II

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Edward I. - Lawmaker

Henry II and the Courts

Henry had the title of king. His life's work was spent in making that kingship a reality. He strove to make himself supreme in his kingdom, and what he did includes a great success and a great failure. Over the barons he triumphed; the Church, on the other hand, worsted him. We have to deal in succession with these two struggles, and we may leave a third aspect of his greatness, his position as a Continental ruler, to lead on to the exploits of his warrior son, Richard Coeur tie Lion.

To understand the reasons of his strength, it is necessary to look for a moment beyond England. His father, Geoffrey of Anjou, was one of a family that, like the Norman dukes, had been fertile in strong men, men who had united warlike daring with the taint ruthlessness and unscrupulousness by which a feudal vassal of the King of France could make himself as strong as his master. Geoffrey had not been able to do very much in England, where even Maud's followers feared and disliked him. But he had reduced Normandy, and when he died, in 1151, he left Henry, then eighteen years of age, the ruler of Normandy, and Count of Anjou, Maine, and Touraine. The next year Henry married Eleanor, divorced wife of Louis VII, and thereby became Duke of Aquitaine, Count of Poitou, Toulouse, Saintonge, and Limousin, with a suzerainty over all the countries west of the Rhone. As he made good these dominions against the King of France, he was, even before he became King of England, the mightiest uncrowned head in Europe. If we add that he was skilled in war, adroit in diplomacy, full of restless energy and fiery temper, never for a moment idle, knowing well how to use his own time and how to make others work for him it is plain that the barons would find him widely different from the "mild and good " King Stephen.

Henry's general policy was to undo all that Stephen had done. The first thing was to restore the royal revenue. Stephen had two-thirds of it to dwindle away by quarreling with the bishops and so upsetting the management of the exchequer, and by granting crown lands to his friends; and the little that Stephen had not spent Maud had scattered. Henry took back the crown and restored Nigel, Bishop of Ely (Roger of Salisbury's nephew ) , to his familiar place in the exchequer. He stopped the practice of barons issuing their own coin, put out a good coinage of his own, and took stern measures with any who adulterated it. He pulled down many hundreds of those oppressive castles which the barons had built in defiance of law. He recovered the royal castles which were in baronial hands. Of the barons, Mortimer held out on the west border, Aumale in Scarborough, and Peverel in the Peak; but he marched against them with an army, and made them submit. The country was still full of the hateful mercenaries who had made it their business to plunder both sides. These were expelled from the realm. Henry also forced Malcolm, King of Scots, to yield the northern counties of Cumberland, Westmorland, and Northumberland, which David had seized; and Malcolm even renewed the old homage, declaring himself to be Henry's "man".

The ease with which his restoration of order was carried out makes it clear that Henry had on his side the mass of the people of England. They had suffered under Stephen's folly and the barons' cruelty long enough to know that the best thing for all was a strong king. If only Henry were "strong and of a good courage" the land would have rest. And rest was what the land needed.
Henry was, however, far more than a domineering king, bent on having his own way. He was a statesman. He set himself rot only to check misdeeds, but to prevent future misdoing He sought precautions as well as remedies. His authority might be recovered by force, but it must be maintained by law. Thus, while he strengthened his army, he also took pains to strengthen his law courts.

Hitherto the weakness of the feudal army had been twofold. First, there was the danger of mutiny or neglect If the king was weak, the baron would not come: or perhaps he came with only a part of his proper followers. But even when the king was, like Henry, strong enough to compel attendance, there was another fatal defect: the tenant was only bound to serve for forty days in the year. It was impossible to carry on a campaign, especially when sieges were long and tiresome, with soldiers who went home again after a little more than a month in the field. So Henry relied more on soldiers whom he paid to fight for him. He used a plan, begun in his grandfather's time, of taking a tax called " scutage " , which was a payment imposed on each " knight's fee " - that is to say, the holding of land which would be liable to provide him with a knight and his proper attendants for service in war. Further, when Henry was planning a distant expedition to Toulouse in 1159, he enlarged the practice by permitting his barons to pay a fine instead of accompanying him in person, and with the money thus obtained he hired soldiers. In this way the king got a better army, and the barons became weaker. As they often preferred to stay at home, they grew less warlike and their vassals less skilled in arms. If they were to rebel they would find the King with a disciplined force, while they themselves had only a band of ill-trained and discontented followers.In this way "scutage" did much to weaken feudalism in England.

The other of Henry's military measures falls at the end of his reign; but it deserves notice here as it too helped to destroy the warlike powers of the barons. By the "Assize of Arms", in 1181, he revived the old Saxon army of the " fyrd ", that national levy of all between the ages of sixteen and sixty. Since the Norman men-at-arms had ridden down the flying Saxon footmen at Hastings, the feudal array had been favoured and the " fyrd " despised. It was the day of heavy cavalry: infantry were held of small account. None the less the " fyrd " had been called out at times of pressing need, and had done good service both against the Scots, and against rebellious barons in 1173 - 4.

The Assize of Arms laid down that every freeman was to possess certain weapons, and these were to be inspected at intervals to see they were in good order. This force of freemen was the origin of our militia. Henceforth the king had two armies - a small force of paid and trained soldiers for service abroad, and a militia to defend England against the foreign invader or rebellious barons. Thus the old feudal levy was less and less needed. Feudalism by degrees lost its military character, became less dangerous to the Crown, and sank into a method of holding land.

One of the greatest marks of the disorder of Stephen's time had been the increase of feudal jurisdictions, the growth, that is to say, of barons' courts, in which the king's law was set aside by a baron's private regulations. In days when communication through the country was difficult and slow, there , was always trouble in keeping the local courts connected with the central courts. It was to tighten this connection that sheriffs (royal officers) had been placed over the shire courts, while Henry I had sent round from the exchequer " traveling barons" who, first attending to matters of revenue, dealt also with matters of law. But while under King Stephen each did what was right in his own eyes, the connection between the central and local courts had almost perished. Henry II set himself to bring the local courts again under royal control. Unless the king's law ran through the length and breadth of the land, the king's power would be but a shadow.

The illegal baronial courts could easily be destroyed by the hand that was strong enough to pull down the illegal baronial castles. But something had to be put in their place: it is generally far easier to destroy than to construct. And the fact that Henry succeeded in his constructive measures does far more to prove him a great statesman than any of his purely destructive work.
Instead of attempting to make anything new, Henry took hold of a Saxon institution and bent it to a new shape. As we have seen, Saxon justice had been accustomed to the idea of an association of men who represented their district, whether it was the shire or the hundred, either to give information on oath, or to do justice. Representatives of the " tunmoots " sat in the hundred courts; representatives of the hundred in the shire courts; Domesday Book itself had been based on the evidence collected from sworn representatives. And it was from this idea of representation that Henry developed the jury system.

The first step was the revival of his grandfathers plan of sending judges from the king's court to the local courts. These justices in eyre still combined a care for the revenue with the task of bringing the king's justice home to all. But an important step forward was taken by the Assize of Clarendon in 1166, when it was ordered that these justices were to be met in each county by twelve legal men from the hundred, and four from the tunship, who were to "present " to them notorious malefactors. These persons did not indeed try the accused: they formed a jury "of presentment" ( the origin of the modern "grand jury " ), whose task it is to decide whether a man ought to be tried for any offence. The real trial was by the ordeal of water, and if the accused failed to get through that he was condemned. Yet even when he came off triumphant from the Ordeal, he was to leave the country within forty days. If the case against him was so strong that the sworn men " presented " him for trial, he was at any rate an undesirable person to keep in the country.

This use of a jury, as laid down in the Assize of Clarendon, and repeated in the Assize of Northampton ( 1176 ), applied only to criminal matters. But in civil cases too a jury might be employed, though only as an alternative. The other choice, however, was the Norman scheme of " trial by battle ", and among the lower people this was disliked, not only because it was un-English (for it was not a native institution), but because it gave an overwhelming advantage to the man best trained in arms; and so was hideously unfair. In the eyes of men of simple faith " thrice is he armed who bath his quarrel just "; but such simplicity of faith was rare, for the very good reason that its belief so often led to the wrong man winning the day.
If all that justice can do is to declare that "might is right ", then justice may as well stand aside altogether; for the same end will be reached without its meddling. As a substitute for this barbarous plan, the system of settling civil cases by a jury, cumbrous and expensive as it was at first, since it involved taking the case to the King's Court at Westminster, proved to be the beginning of a valuable reform.

The conclusion of the matter lies outside the reign of Henry II; but as he was the father of the English jury, it is well to join his name the perfecting of the work he began. From admitting that after all Might was not Right, It was but a shot step to agree that Chance was not Justice. Trial by battle fell into disuse, and soon afterwards trial by Ordeal followed it. In 1216 the Church forbade the further use of Ordeal, and in its place came the "petty jury ", a body of twelve men drawn from the neighbourhood, who were to deliver a verdict' on the charge before them. At first they were chosen for their presumed knowledge of the accused's crime; and if they could not agree, others were added till twelve were found of one mind. It was only by slow degrees that the functions of witness and juryman were kept apart; and for a long time the accused could not call witnesses for himself, or have anyone to defend him, since the jury, being themselves witnesses, were supposed to know all there was to be known without outside assistance: but, imperfect as the jury was in its beginnings, it grew till it became one of the greatest safeguards of English liberty.

Hitherto we have seen nothing but Henry's triumphs: we have seen him strike down disorder as personified by the barons; we have seen him strengthen and widen the royal justice till it be came so formidable that the proudest noble ,dared not defy it, and so far-reaching that the meanest freeman could be sure of its protection. But there was yet one body over which the royal justice had no authority. It is Henry's attempt to enforce his authority over the Church that must next occupy us.

The king was in no way hostile to the Church court as such. All he was striving for was to bring all criminals alike under the ordinary law, and to destroy all exemptions. But there was strong reason why the Church courts should not deal with crimes. They had no power of life and death. Their punishments were limited to ordering penances, which, however severe, could not meet cases of murder. The result was an inequality of justice. A layman who murdered was hanged; a cleric was merely degraded and put to penance. Again, we are led to wonder why churchmen, who at this time especially were anxious to purify and raise their order, should desire to protect their guilty members. The explanation lies in the same desire which we have noticed before: to sever their order from the lay world, and exalt it by the severance. If a cleric were degraded from his orders, this, they held, should be punishment enough. If he were submitted to the ordinary courts, it would be an admission that he was no better than an ordinary man, and he would be punished twice for the same offence.

Lastly, the number of "criminal clerks" was large, because the term "cleric" included a far larger class than it does now days. It embraced not only what we call the clergy but all sorts of men in minor orders"- exorcists, acolites, readers, sacristans, subdeacons - all who were engaged in the service of the Church, or who were intending to enter its orders, and had taken what was called the first tonsure. It was as if we were now to extend the term "clergy" to all the officials of a cathedral the vergers and beadles, the singing men in the choir, and so forth. All the clerks of the king's Chancery were clerics. Indeed, for all practical purposes, all the professional classes, except soldiers and lawyers, were clerics. To some of these their orders meant little, save an exemption from the royal courts and a certainty of light punishment in cases of misdoing. Consequently clerical offenders, so far from being rare, were extraordinarily numerous. And as the Church courts claimed to try not only cases where a cleric was the accused party, but also any case in which a cleric was concerned, the number of cases withdrawn from the royal courts and dealt with by courts that could not inflict meet punishment was exceedingly large .