THE GOVERNMENT OF ENGLAND

The building up of his mighty empire was not the only task which filled the first years of Henry’s reign. Side by side with this went on another work of peaceful internal administration which we can but dimly trace in the dearth of all written records, but which was ultimately to prove of far greater significance than the imperial schemes that in the eyes of his contemporaries took so much larger proportions and shone with so much brighter lustre.

The restoration of outward order had not been difficult, for the anarchy of Stephen’s reign, terrible as it was, had only passed over the surface of the national life and had been vanquished by a single effort. But the new ruler of England had to begin his work of administration not only amid the temporary difficulties of a general disorganization, but amid the more permanent difficulties of a time of transition, when society was seeking to order itself anew in its passage from the medieval to the modern world; and his victory over the most obvious and aggressive forms of disorder was the least part of his task. Through all the time of anarchy powerful forces had been steadily at work with which the king had now to reckon. A new temper and new aspirations had been kindled by the troubles of the last years. The deposition of Stephen, the elections of Matilda and of Henry, had been so many formal declarations that the king ruled by virtue of a bargain made between him and his people, and that if he broke his contract he justly forfeited his authority. The routine of silent and submissive councils had been broken through, and the earliest signs of discussion and deliberation had discovered themselves, while the Church, exerting in its assemblies an authority which the late king had helplessly laid down, formed a new and effective centre of organized resistance to tyranny in the future Even the rising towns had seized the moment when the central administration was paralysed to extend their own privileges, and to acquire large powers of self-government which were to prove the fruitful sources of liberty for the whole people.

We see everywhere, in fact, signs of the great contest which in one form or another runs through the whole of the twelfth century, and gives its main interest in our eyes to the English history of the time, the struggle between the iron organization of medieval feudalism and those nascent forces of modern civilization which were fated in the end to shatter and supersede it. In spite of the cry of lamentation which the chroniclers carry down to us over the misery of a land stricken by plague and famine and rapine, it is still plain that even through the terrible years of Stephen’s reign England had its share in the universal movement by which the squalor and misery of the Middle Ages were giving place to a larger activity and a better order of things A class unknown before was fast growing into power, the middle class of burghers and traders, who desired above all things order, and hated above all things the medieval enemy of order, the feudal lord. Merchant and cultivator and wool-grower found better work ready to their hand than fighting, and the appearance of mercenary soldiers marked everywhere the development of peaceful industries. Amid all the confusion of civil war the industrial activities of the country had developed with bewildering rapidity; while knights and barons led their foreign hirelings to mutual slaughter, monks and canons were raising their religious houses in all the waste places of the land, and silently laying the foundations of English enterprise and English commerce. To the great body of the Benedictines and the Cluniacs were added in the middle of the twelfth century the Cistercians, who founded their houses among the desolate moorlands of Yorkshire in solitary places which had known no inhabitants since the Conqueror’s ravages, or among the swamps of Lincolnshire. A hundred and fifteen monasteries were built during the nineteen years of Stephen’s reign, more than had been founded in the whole previous century; a hundred and thirteen were added to these during the reign of Henry. In half a century sixty-four religious houses were built in Yorkshire and Lincolnshire alone. Monastery and priory, in which the decorated Romanesque was giving way to the first-pointed architecture, towered above the wretched mud-hovels in which the whole of the population below the class of barons crowded; their churches were distinguished by the rare and novel luxury of glass windows, which, as they caught the red light of the setting sun, startled the peasant with omens of coming ill. Multitudes of men were busied in raising the vast pile of buildings which made up a religious house, cloisters, dormitories, chapels, hospitals, granaries, barns, storehouses, whose foundations when all else is gone still show in the rugged surface of some modern field. Regular and secular clergy were alike spurred on in their work by jealous rivalry. Archbishop Roger of York was at the opening of Henry’s reign building his beautiful church at Ripon, of whose rich decoration traces still remain, while he gave scant sympathy and encouragement to the Cistercian monks still busy with the austere mass of buildings which they had raised at Fountains almost within sight of the Ripon towers.

We may gain some faint idea of the amazing stir and industry which the founding of these monasteries implied by following in our modern farms and pasture lands the traces which may even now be seen of the toil of these great preachers of labour. The whole water supply of a countryside for miles round was gathered up by vast drainage works; stagnant pools were transformed into running waters closed in by embankments, which still serve as ditches for the modern farmer; swamps were reclaimed that are only now preserved for cultivation by maintaining the dykes and channels first cut by medieval monks; mills rose on the banks of the newly-created streams; roads were made by which the corn of surrounding villages might be carried to the central mill and the produce of the land brought to the central storehouse. The new settlers showed a measureless cunning and industry in reclaiming worthless soil; and so eager were they for land at last, that the Cistercians were even said to desecrate churchyards, and to encroach on the borders of royal forests. They grew famous for the breeding of horses according to the exacting taste of the day, learned in the various species of palfreys and sumpter horses and knight’s chargers and horses for ambling or for trotting. They thanked Heaven for the “blessings of fatness and fleeces,” as foreign weavers sought their wool and the gold of Flanders was poured into their treasure-houses. The same enterprise and energy which in modern days made England the first manufacturing country of the world was then, in fact, fast pressing her forward to the place which Australia now holds towards modern Europe, the great wool-growing country, the centre from whence the raw material for commerce was supplied. In vain the Church by its canons steadily resisted the economic changes of a time when wealth began to gather again and capital found new uses, and bitterly as it declaimed against usury and mortgages, angry complaints still increased “that many people laying aside business practised usury almost openly.”

Nor were the towns behindhand in activity. As yet, indeed, the little boroughs were for the most part busy in fighting for the most elementary of liberties for freedom of trade within the town, for permission to hold a market, for leave to come and go freely to some great fair, for the right to buy and sell in some neighbouring borough, for liberty to carry out their own justice and regulate the affairs of their town. They were buying from the lord, in whose “demesne” they lay, permission to gather wood in the forest, right of common in its pasture, the commutation of their services in harvest-time for “reap-silver,” and of their bondage to the lord’s mill for “multure-penny.” Or they were fighting a sturdy battle with the king’s justices to preserve some ancient privilege, the right of the borough perhaps to “swear by itself,” that is, to a jury of its own or its freedom from the general custom of “frank-pledge.” As trade advanced commercial bodies grew up in the boroughs and formed themselves into gilds; and these gilds gradually drew into their own hands the government of the town, which in old days had been decided by the general voice of the whole body of its burghers that is, of those who held land within its walls. The English borough began, in fact, to resemble the foreign “Commune.” Gilds of bakers, of weavers, of mercers, of fullers, of butchers, goldsmiths, pepperers, clothiers, and pilgrims appeared in London, York, Gloucester, Nottingham, even in little boroughs such as that of St. Edmunds; while in distant Cornwall, Totnes, Lidford, and Bodmin set up their gilds. How Henry regarded the movement it is hard to say. The gilds had to pay, as everything had to pay, to the needy Treasury; but otherwise they were not interfered with, and went on steadily increasing in power and numbers.

Prosperity brought with it the struggle for supremacy, and the history of nations was rehearsed on a petty stage, with equal passions if with less glory. A thriving village or township would begin to encroach on the common land of its weaker neighbours, would try to seize some of its rights of pannage in the forest, or fishing in the stream. But its most strenuous efforts were given to secure the exclusive right of trading. Free trade between village and village in England was then, in fact, as much unknown as free trade at this day between the countries of modern Europe. Producer, merchant, manufacturer saw in “protection” his only hope of wealth or security. Jealously enclosed within its own borders, each borough watched the progress of its neighbours “with anxious suspicion.” If one of them dared defiantly to set up a right to make and sell its own bread and ale, or if it bought a charter granting the right to a market, it found itself surrounded by foes. The new market was clearly an injury to the rights of a neighbouring abbot or baron or town gild, or it lessened the profits of the “king’s market” in some borough on the royal demesne. Then began a war, half legal, half of lawless violence. Perhaps the village came off victorious, and kept its new market on condition that it should never change the day without a royal order (unless in deference to the governing religious feeling of the time, it should change it from Sunday to a week day). Perhaps, on the other hand, it saw its charter vanish, and all the money it had cost with it, its butchers’ and bakers’ stalls shattered, its scales carried off, its ovens destroyed, the “tumbril” for the correction of fraudulent baker or brewer destroyed. Of such a strife we have an instance in the fight which the burghers of Wallingford carried on with their neighbours. They first sought to crush the rising prosperity of Abingdon by declaring that its fair was an illegal innovation, and that in old days nothing might be sold in the town save bread and ale. Oxford, which had had a long quarrel with Abingdon over boat cargoes and river tolls, readily joined in the attack, but ultimately by the king’s judgment Abingdon was declared to have had right to a “full market”, and Wallingford was discomfited. A little later its wrath was kindled afresh by the men of Crowmarsh, who, instead of coming to the Wallingford market, actually began to make their own bread and ale by what warrant no one knew, said the Wallingford bakers and brewers. Crowmarsh held out through the later years of Henry’s reign and Richard’s, had a sore struggle under John, and at last under Henry III. saw the officers of justice come down upon them a second time, and make a general wreck of ovens and “tumbril,” while the weights were carried off to triumphant Wallingford.

But if an era of industrial activity had opened, the new intellectual impulse of the time was yet more striking. Great forces had everywhere worked together under the one name of the Church: the ecclesiastical organization which was represented in Rome, in the Episcopate, and in the Canon law; the democratic monachism; the intellectual temper with its pursuit of pure knowledge; the religious mystical spirit which was included in all the rest and yet separate from them. But other elements than these were at work in the twelfth century, the literary and historic movement, the legal revival, the new scepticism, the spirit of wide imperialism, the romantic impulse. Education had up to this time been wholly undertaken by the Church. The work of teaching had been one of the main objects of the cathedral; the school and its chancellor were as essential parts of the foundation as dean or precentor. No rivals to the cathedral schools existed save those of the monasteries, and education naturally bore the impress given to it in these great institutions; profane learning was only valued so far as it could be used to illustrate the Bible, and the ordinary teaching was almost wholly founded on four or five authors, who wrote when the struggle of the Empire against the barbarians was almost over, and who represented the last efforts of a learning which was ready to vanish. The monastic libraries show how narrow was the range of reading. The great monastery of Bec had about fifty books. At Canterbury the library of Christ Church, which a century later possessed seven hundred volumes, had at this time but a hundred and fifty. Its single Greek work was a grammar; and if it could boast of a copy of the Institutes of Justinian, it did not yet possess a single book of civil law, not even Gratian’s Decretum. The age of Universities, however, had now begun, and English scholars went abroad in numbers to study law at Bologna and the Italian universities, or to learn philosophy and the arts at Paris, or at some of the less costly schools in Gaul. On all sides they met with the stir of political and religious speculation. The crusades and the intercourse with the East had broken down the boundaries between Christian and Mohammedan thought; the Jews were teaching science and medicine, and had just brought from the East the philosophy of Aristotle. France struck the first note of a new literature in her chronicles, her national poems, and the songs of her troubadours. All Paris was ringing with the struggle of Abelard and St. Bernard. At its university Peter Lombard was preparing to publish his Sentences, which were to form the framework for the dogmatic theology of centuries to come. New theories of liberty were quickened by classical studies which made men familiar with the heroes of Greece and Rome. Abelard’s disciple, Arnold of Brescia, was preaching his theory of political and religious freedom; civil government was to return to the old republican forms of ancient Rome, and the clergy were to be separated from all secular jurisdiction. In Lombardy the growth of wealth, population, and trade, demanded a more developed jurisprudence, and a new study had sprung up of Roman law. Bolognese lawyers lectured on the Pandects of Justinian, and by their work the whole legal education of the day was transformed; old prejudices and old traditions lost the authority which had long hedged them about, and the new code threatened to destroy everywhere the imperfect systems of the past with which it came in contact. The revival of the study of civil law was followed by a new scientific study of Canon law; and a recognized code was for the first time developed, as well as a minute system of legal procedure, when Gratian published in 1151 the Decretum, a great text-book of ecclesiastical law.

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 Provencal 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 and true, of the neighbourhood. But the custom was not yet governed by any positive and inviolable rules, and the action of the King’s Court in this respect was imperfectly developed, uncertain, and irregular.

It is scarcely possible, indeed, to estimate the difficulties in the way of justice when Henry came to the throne. The wretched freeholders summoned to the Shire Court from farm and cattle, from mill or anvil or carpenter’s bench, knew well the terrors of the journey through marsh and fen and forest, the dangers of flood and torrent, and perhaps of outlawed thief or murderer, the privations and hardships of the way; and the heavy fines which occur in the king’s rolls for non-attendance show how anxiously great numbers of the suitors avoided joining in the troublesome and thankless business of the court. When they reached the place of trial a strange medley of business awaited them as questions arose of criminal jurisdiction, of feudal tenure, of English “sac and soc,” of Norman franchises and Saxon liberties, with procedure sometimes of the one people, sometimes of the other. The days dragged painfully on as, without any help from trained lawyers, the “suitors” sought to settle perplexed questions between opposing claims of national, provincial, ecclesiastical, and civic laws, or made arduous journeys to visit the scene of some murder or outrage, or sought for evidence on some difficult problem of fact. Evidence, indeed, was not easy to find when the question in dispute dated perhaps from some time before the civil war and the suppression of the sheriff’s courts, for no written record was ever kept of the proceedings in court, and everything depended on the memory of witnesses. The difficulties of taking evidence by compurgation increased daily. A method which centuries before had been successfully applied to the local crimes of small and stationary communities bound together by the closest ties of kinship and of fellowship in possession of the soil, when every transaction was inevitably known to the whole village or township, became useless when new social and industrial conditions had destroyed the older and simpler modes of life. The procedure of the courts was antiquated and no longer guided by consistent principles. Their modes of trial were so cumbrous, formal, and inflexible that it was scarcely possible to avoid some minute technical mistake which might invalidate the final decision.

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 would roughly thrust them out into the night from the miserable hut in which they sought shelter and cut loose their horses’ halters, and whose hearts were hardly softened by heavy bribes. They were often half-starved; if food was to be had at all, it was at the best stale fish, sour beer and wine, coarse black bread, and meat scarcely eatable, even with the rough appetite of travellers of that age. Matters were made ten times worse by Henry’s mode of travelling. “If the king has proclaimed that he intends to stop late in any place, you may be sure that he will start very early in the morning, and with his sudden haste destroy every one’s plans. It often happens that those who have let blood or taken medicine are obliged at the hazard of their lives to follow. You will see men running about like mad; urging forward their pack-horses, driving their waggons into one another, everything in confusion, as if hell had broken loose. Whereas, if the king has given out that he will start early in the morning, he will certainly change his mind, and you may be sure he will snore till noon. You will see the pack-horses drooping under their loads, waggons waiting, drivers nodding, tradesmen fretting, all grumbling at one another. Men hurry to ask the loose women and the liquor retailers who follow the court when the king will start; for these are the people who know most of the secrets of the court.” Sometimes, on the other hand, when the din of the camp was silenced for a while in sleep, a sudden message from the royal lodging would again set all in commotion. A wild clatter of horsemen and footmen would fill the darkness. The stout pack-horses, probably borrowed from a neighbouring monastery to carry the heavy Rolls in which state business was chronicled, were hastily laden. Baggage of every kind was slung across the backs of horses, or stowed into cumbrous two-wheeled waggons made of rough planks, or of laths covered with twisted osiers, which had been seized from farmer or peasant for the king’s journey. The forerunners pushed on in front to give notice of the king’s arrival, and in the dim morning light the motley train of riders at last crowded along the narrow trackway, followed heavily by the waggons dragged by single file of horses, which too often foundered in the muddy hollows, or half-plunged into the torrents through rents and chasms in the low, narrow bridges that threatened at every instant to crumble away under the strain. But before the weary day’s journey was over the king would suddenly change his mind, stop short of the town towards which all were toiling in hope of food and shelter, and turn aside to some spot in the woods where there was perhaps a solitary hut and food only for himself: “And I believe, if I dare to say so, that he took delight in our distresses,” groans the poor secretary as he pictures the knights wandering by twos and threes in the thickets, separated in the darkness from their followers, and drawing their swords one against another in furious strife for the possession of some shelter for which pigs would scarcely have quarrelled. “Oh, Lord God Almighty,” he ends, “turn and convert the heart of the king from this pestilent habit, that he may know himself to be but man, and that he may show a royal mercy and human compassion to those who are driven after him not by ambition but by necessity.”

But at whatever inconvenience to his courtiers Henry carried out his own purposes, and kept pace with the enormous mass of business that came to him. In all his hurried journeys we see busy royal clerks scribbling away at each halt charters, grants, letters patent and letters close, the king too fighting, riding, dictating, signing, sometimes dating his letters from three places on the same day. A travelling king such as this was well known to all his people. He was no constitutional fiction, but a living man; his character, his look and presence, his oaths and jests, his wrath, all were noted and talked over; the chroniclers who followed his court with their gossip and their graver news spread the knowledge of his doings. A new sense of law and justice grew up under a sovereign who himself journeyed through the length and breadth of the land, subduing the unruly, hearing pleas, revising unjust sentences, drawing up charters with his own hand, setting the machinery of government to work from end to end of England. More than this, the king himself had learned to know his people. He had seen for himself the castles of the barons, the huts of the peasants, the little villages in the clearings; he had seen the sheriff sitting in the shire court, the lord of the manor doing justice in his “hall-moot,” the bishop and archdeacon dispensing the law in the church courts. By his sudden journeys, his unexpected movements and rapid change of plans, he arrived at the very moment and the very place where no one looked for him; nothing was safe from his eye and ear; no false sheriff or rebellious lord could be sure when his terrible master might be at his doors. Foreigner as the king was, there was soon no Englishman who knew the affairs of his kingdom so well. His penetrating curiosity, his wide experience, his practised judgment, rapidly made him one of the most sagacious administrators and wisest legislators that ever guided England in a very critical moment of her history; and when he finally drew up his system of reform there was not a single point of principle in it from which he or his successors found it necessary afterwards to draw back.