Part 8

In the history of judicial administration the personal initiative of Henry II is more evident than in finance. The king had an especial fondness for legal questions and often participated in their decision, yet his influence was exerted particularly to develop a system of courts and judges which could work in his absence and without his intervention. Although the institution is found previously both in England and Normandy, it is in Henry’s reign that the system of itinerant justices is fully organized with regular circuits and a rapidly extending jurisdiction which broke down local privileges and exemptions and by its decisions created the common law. Hitherto chiefly a feudal assembly concerned with the causes of the king and his barons, after Henry’s time the king’s court is a permanent body of professional judges and a tribunal for the whole realm. It is no accident that his reign produced in the treatise of Glanvill on _The Laws and Customs of England_ the first of the great series of textbooks which are the landmarks of English legal development. Henry’s reign is also an important period in the growth of Norman law, the earliest formulation of which reaches us ten years after his death in the _Très Ancien Coutumier de Normandie_, and the reduction of local custom to writing is a process which went on in his other continental possessions; yet, as in finance, England and Normandy plainly took the lead in legal literature and in legal development. Indeed, the distinction between justice and finance is less sharp than we might at first suppose, for the growth of jurisdiction meant increased profit from fees and fines, and heavy payments were necessary to secure the intervention of the royal judges. In this sense Henry has often been called, and rightly, a seller of justice, but his latest biographer has pointed out that “if the commodity was expensive it was at least the best of its kind, and there is a profound gulf between the selling of justice and of injustice. A bribe might be required to set the machine of the law in motion, but it would be unavailing to divert its course when once started.”[37] The wheels of government are turned by self-interest as well as by unselfish statesmanship.

Of the many judicial reforms of Henry’s reign none is more significant than the measures which he took for extending the use of the jury as a method of trial in the royal courts, and none illustrates better the relation of Norman to English institutions. Characteristic as the jury is in the history of English government and of English law, as at once the palladium of personal liberty and the basis of representative institutions in Parliament, it is a striking fact that originally it was “not popular but royal,” not English but Norman, or rather Frankish through the intermediary of Normandy.[38] Although it has a history which can be traced for more than a thousand years, the jury does not definitely make its appearance in England until after the Norman Conquest, and the decisive steps in its further development were taken during the union of England and Normandy and probably as a result of Norman experience. It is now the general opinion of scholars that the modern jury is an outgrowth of the sworn inquests of neighbors held by command of the Norman and Angevin kings, and that the procedure in these inquests is in all essential respects the same as that employed by the Frankish rulers three centuries before. It is also generally agreed that while such inquests appear in England immediately after the Norman Conquest,--the returns of the Domesday survey are a striking example,--their employment in lawsuits remains exceptional until the time of Henry II, when they become in certain cases a matter of right and a part of the settled law of the land. What had been heretofore a special privilege of the king and of those to whom he granted it, became under Henry a right of his subjects and a part of the regular system of justice. Accomplished doubtless gradually, first for one class of cases and then for another, this extension of the king’s prerogative procedure to his subjects seems to have been formulated in a definite royal act or series of acts, probably by royal ordinances or assizes, whence the procedure is often called the assize. In England the earliest of these assizes known to us appears in 1164 in the Constitutions of Clarendon, followed shortly by applications of this mode of trial to other kinds of cases. In Normandy repeated references to similar assizes occur some years earlier, between 1156 and 1159, so that as far as present evidence goes, the priority of Normandy in this respect is clear. Moreover, Normandy offers two pieces of evidence that are still earlier. In the oldest cartulary of Bayeux cathedral, called the _Black Book_ and still preserved high up in one of its ancient towers, are two writs of the duke ordering his justices to have determined by sworn inquest, in accordance with the duke’s assize, the facts in dispute between the bishop of Bayeux and certain of his tenants. The ducal initial was left blank when these writs were copied into the cartulary, in order that it might later be inserted in colors by an illuminator who never came; and those who first studied these documents drew the hasty conclusion that they were issued by Henry as duke of Normandy before he became king. It was not, however, usual for the mediæval scribe to leave the rubricator entirely without guidance when he came to insert his initials, but to mark the proper letter lightly in the place itself or on the margin, and an attentive examination of the well-thumbed margins of the Bayeux _Black Book_ shows that this was no exception to the rule, and that in both the cases in question the initial G had been carefully indicated. G can, of course, stand only for Henry’s father Geoffrey, so that some general use of the assize as a method of trial in the ducal courts can be proved for his reign. As no such documents have reached us for his predecessors, it would be tempting to assume the influence of Angevin precedents; but this runs counter to what we know of the judicial institutions of Anjou in this period, as well as of the policy of Geoffrey in Normandy, which was to follow in all respects the system of Henry I. Although the first general use of the sworn inquest as a mode of trial thus antedates Henry II, it is still a Norman institution.

* * * * *

It would carry us too far to discuss the many problems connected with the use of the jury in Henry’s reign or to follow the many changes still needed to convert the sworn inquest into the modern jury. It is sufficient for our present purpose to mark its Norman character, first as being carried to England by the Normans in its older form, and then as being developed into its newer form on Norman soil. It should, however, be remembered that its later history belongs to England rather than to Normandy. With the rise of new forms of procedure in the thirteenth century, the jury on the Continent declines and finally disappears; “but for the conquest of England,” says Maitland, “it would have perished and long ago have become a matter for the antiquary.”[39] In England, however, it was early brought into relations with the local courts of the hundred and the county, where it struck root and developed into a popular method of trial which was later to become a defence against the king’s officers who had first introduced it. A bulwark of individual liberty, the jury also holds an important place in the establishment of representative government, for it was through representative juries that the voice of the countryside first asserted itself in the local courts, for the assessment of taxes as well as for the decision of cases, and it was in the negotiations of royal officers with the local juries that we can trace the beginnings of the House of Commons. It is no accident that the first employment of local juries for the assessment of military and fiscal obligations belongs to the later years of Henry II.

It may seem a far cry from the Frankish inquests of the ninth century to the juries and the representative assemblies of the twentieth, but the development is continuous, and it leads through Normandy. In this sense the English-speaking countries are all heirs of the early Normans and of the Norman kings who, all unconsciously, provided for the extension and the perpetuation of the Norman methods of trial. At such points Norman history merges in that of England, the British Empire, and the United States.

BIBLIOGRAPHICAL NOTE

The chief events in the history of the Norman empire are treated in the general works of Miss K. L. Norgate, _England under the Angevin Kings_ (London, 1887); Sir J. H. Ramsay, _The Angevin Empire_ (London, 1903); G. B. Adams, _History of England from the Norman Conquest to the Death of John_ (London, 1905); H. W. C. Davis, _England under the Normans and Angevins_ (London, 1905). There is a brief biography of _Henry the Second_ by Mrs. J. R. Green (London, 1888; reprinted, 1903); and a more recent one by L. F. Salzmann (Boston, etc., 1914). A notable characterization of Henry and his work is given by William Stubbs, in the introduction to his edition of _Benedict of Peterborough_, II (London, 1867), reprinted in his _Historical Introductions_ (London, 1902), pp. 89–172. For the continental aspects of the reign see F. M. Powicke, _The Loss of Normandy_ (Manchester, 1913); and his articles in the _English Historical Review_, XXI, XXII (1906–07). Cf. A. Cartellieri, _Die Machtstellung Heinrichs II. von England_, in _Neue Heidelberger Jahrbücher_, VIII, pp. 269–83 (1898); F. Hardegen, _Imperialpolitik König Heinrichs II. von England_ (Heidelberg, 1905). The fullest account of Irish affairs is G. H. Orpen, _Ireland under the Normans_ (Oxford, 1911).

* * * * *

The best general accounts of constitutional and legal matters are those of Stubbs, _Constitutional History of England_, I (last edition, Oxford, 1903), corrected by various special studies of J. H. Round, to be found chiefly in his _Feudal England_ (London, 1895; reprinted, 1909) and _Commune of London_ (Westminster, 1899); and by Pollock and Maitland, _History of English Law_ (second edition, London, 1898). The results of recent investigation are incorporated in the studies and notes appended to the French translation of Stubbs by Petit-Dutaillis (Paris, 1907); this supplementary material is translated into English by W. E. Rhodes (Manchester, 1911). There are admirable studies of the chancery in L. Delisle. _Recueil des actes de Henri II concernant les provinces françaises et les affaires de France_, introduction (Paris, 1909); and of the exchequer in R. L. Poole, _The Exchequer in the Twelfth Century_ (Oxford, 1912). See also Hubert Hall, _Court Life under the Plantagenets_ (London, 1890; reprinted, 1902). For the more distinctively Norman side of the government see Haskins, “The Government of Normandy under Henry II,” in _American Historical Review_, XX, pp. 24–42, 277–91 (1914–15); and earlier papers on “The Early Norman Jury,” _ibid._, VIII, pp. 613–40 (1903); “The Administration of Normandy under Henry I,” in _English Historical Review_, XXIV, pp. 209–31 (1909); “Normandy under Geoffrey Plantagenet,” _ibid._, XXVII, pp. 417–44 (1912); Delisle, _Des revenus publics en Normandie au XII^e siècle_, in _Bibliothèque de l’École des Chartes_, X-XIII (1848–52); Valin, _Le duc de Normandie et sa cour_, supplemented by R. de Fréville, “Étude sur l’organisation judiciaire en Normandie aux XII^e et XIII^e siècles,” in _Nouvelle Revue historique de droit_, 1912, pp. 681–736. The best general account of Norman law is still that of H. Brunner, _Die Entstehung der Schwurgerichte_ (Berlin, 1872).

V

NORMANDY AND FRANCE

In July, 1189, Henry II lay dying in his castle at Chinon. Abandoned and attacked by his sons, driven from LeMans and Tours by Philip of France and forced to a humiliating peace, sick in body and broken in spirit, the aged king made his way to the old stronghold of the Angevin counts in the valley of the Vienne. Cursing the faithless Richard as he gave him the enforced kiss of peace at Colombières, he had fixed his hopes on his youngest son John till the schedule was brought him of those who had thrown off their allegiance. “Sire,” said the clerk who read the document to the fever-tossed king, “may Christ help me, the first here written is Count John, your son.” “What,” cried the king, starting up from his bed, “John, my very heart, my best beloved, for whose advancement I have brought upon me all this misery? Now let all things go as they will; I care no more for myself nor for anything in this world.” Two days later he died, cursing his sons, cursing the day he had been born, repeating constantly, “Shame on a conquered king.” Deserted by all save his illegitimate son Geoffrey, who received his father’s blessing and his signet ring marked with the leopard of England, Henry was plundered by his attendants of gold and furnishings and apparel, just as William the Conqueror had been despoiled in the hour of his death at Rouen, till some one in pity threw over the royal corpse the short cloak, or ‘curt mantle,’ by which men called him. Two days later he was laid away quietly in the nunnery of Fontevrault, where a later age was to rob his tomb of all save the noble recumbent figure by which it is still marked. Thus passed away the greatest ruler of his age; thus began the collapse of the Norman empire.

* * * * *

Strikingly dramatic both in its public and private aspects, the end of Henry II offers material fit for a Greek tragedy, and we may, if we choose, imagine an Æschylus or a Sophocles painting the rapidity of his rise, the _hybris_ of his splendor, and the crushing _nemesis_ of his fall. Even the Promethean touch is not lacking in the withdrawal of Henry’s unconquered soul from God, as he looked back in flight at the burning city of Le Mans: “My God, since to crown my confusion and increase my disgrace, thou hast taken from me so vilely the town which on earth I have loved best, where I was born and bred, and where my father lies buried and the body of St. Julian too, I will have my revenge on thee also; I will of a surety withdraw from thee that thing that thou lovest best in me.”[40] Henry’s life needs no blasphemous closing in order to furnish inexhaustible material for moralizing, and in a period like the Middle Ages, given over as none other to moral lessons, it served to point many a tale of the crimes and fate of evil-doers. That vain and entertaining Welshman, Gerald de Barri, or Giraldus Cambrensis, in whom a recent writer thinks he has discovered the proto-journalist,[41] found in Henry’s career the basis for a considerable book devoted to the _Instruction of Princes_. But whereas the ways of the gods are dark and unsearchable to the Greek tragedians, they have no mystery for Gerald. Henry’s punishment was due to his violations of religion, first in his marriage with Eleanor, the divorced wife of his feudal lord Louis VII, second in his quarrel with Archbishop Becket and the oppression of the church which followed, and third and worst of all, in his failure to take part in a crusade. The hammer of the church, Henry was born for destruction. The modern world is more cautious in the matter of explaining the inexplicable, and more prone to seek human causes when they can be found, yet the collapse of the Plantagenet empire is not the hardest of the historian’s problems. Something he will ascribe to larger forces of development, something he can hardly fail to attribute to the character of Henry’s sons and to his policy in dealing with them.

Henry II is not the only case in history of a king who could rule every house but his own, of a father who was shrewd and stern in his dealings with the world but swayed by unrequited affection and ill-timed weakness in dealing with his children. Knowing other men, he did not know his sons, and his grave errors in dealing with them were errors of public policy, since they concerned the government of his dominions and the succession to the throne. Even those who had no sympathy for Henry had little to say to excuse the character and the unfilial conduct of his sons. “From the Devil we come, and to the Devil we return,” Richard was reported to have said; and none cared to contradict him. Of the four lawful sons who grew to maturity, the eldest was Henry, crowned king by his father in 1170, and hence generally known as the Young King. Handsome and agreeable, prodigal in _largesse_, a patron of knightly sports and especially of the tournaments which were then coming into fashion, the Young King enjoyed great popularity in his lifetime and after his early death was mourned as a peer of Hector and Achilles and enshrined as a hero of courtly romance. Yet for all this there was no substantial foundation. He was faithless, ungrateful, utterly selfish, a thorn in his father’s side and a constant source of weakness to the empire. Married at the age of five to the daughter of Louis VII, he became the instrument of the French king in his intrigues against Henry II and the rallying point of feudal reaction and personal jealousy. King in name though not in fact, having been crowned merely as a means of securing the succession, Prince Henry craved at least an under-kingdom of his own, and on two occasions, in 1173 and again in 1183, led serious and widespread revolts against his father, the evil results of which were not undone by his death-bed repentance in the midst of the second uprising. In this revolt of 1183 he had with him his younger brother Geoffrey, duke of Brittany, ‘the son of perdition,’ equally false and treacherous, without even the redeeming virtue of popularity. Fortunately Geoffrey also died before his father.

The death of the Young King left as Henry’s eldest heir Richard, known to the modern world as the Lion-Hearted. With much of his father’s energy, Richard seems to have inherited more than any of his brothers the tastes and temperament of his mother, Eleanor of Aquitaine. Adventurous and high-spirited, fond of pomp and splendor, a lover of poetry and music, be it the songs of Provençal minstrels or the solemn chants of the church, he belonged on this side of his nature to the dukes of Aquitaine and the country of the troubadours. He loved war and danger, in which he showed great personal courage, and in the conduct of military enterprises gave evidence of marked ability as a strategist; but his gifts as a ruler stopped there. The glamour of his personal exploits and the romance of his crusading adventures might dazzle the imagination of contemporaries more than the prosaic achievements of his father, and his gifts to religious houses might even predispose monastic historians in his favor, but for all this splendor his subjects paid the bills. In spite of his great income, he was always in need of money for his extravagances; and for his fiscal exactions there was never the excuse of large measures of public policy. Indeed, so far as we can see, Richard had no public policy. “His ambition,” says Stubbs, “was that of a mere warrior: he would fight for anything whatever, but he would sell everything that was worth fighting for.”[42] Self-willed and self-centred, he followed wherever his desires led, with no sense of loyalty to his obligations or of responsibility as a ruler. Made duke of Aquitaine at seventeen, he sought to ride down every obstacle and bring immediate order and unity into a region which had never enjoyed either of these benefits; and he quickly had by the ears the land which he should have best understood. He was soon in revolt against his father and also at war with the Young King; for his own purposes he later went over to the king of France, and jested with his boon companions over his father’s discomfiture and downfall. Even as king at the age of thirty-two, Richard remained an impetuous youth; he never really grew up. Haughty and overbearing, he alienated friends and allies; inheriting the rule of the vast Plantagenet empire, he showed no realization of imperial duty or opportunity. Thus he visited England but twice in the course of his reign of ten years and valued it solely as a land from which revenue might be wrung by his ministers, nor did his continental dominions derive advantage from his presence. Impetuous and short-sighted, Richard Yea-and-Nay had to meet the greatest statesman of his day in deadly rivalry; and though panegyrists placed him above Alexander, Charlemagne, and King Arthur, he went down ignominiously before Philip Augustus.

Last of all comes the youngest son John, “my heart, my best beloved.” Never did father lavish his affection on a more unworthy child. False to his father, false to his brother Richard, John proved false to all, man or woman, who ever trusted him. He had none of the dash and courage of Richard, none of his large and splendid way, and none of his popularity and gift of leadership. Men saw him as he was, no Charlemagne or Arthur, but petty, mean, and cowardly, small even in his blasphemies, swearing by the feet or the teeth of God, when Henry II had habitually sworn by his eyes, and William the Conqueror by his splendor--_par la resplendor De!_ Always devious in his ways, John’s cunning sometimes got him the reputation for cleverness, and John Richard Green went so far as to call him “the ablest and most ruthless of the Angevins.” But his ability, particularly in military matters not inconsiderable, was of the kind which wasted itself in temporary expedients and small successes; it was incapable of continuous policy or sustained efforts; and it everywhere ended in failure. Gerald the Welshman, the friend of his youth, at the end can only pronounce him the worst of history’s tyrants. John’s whole career offers the most convincing evidence of the futility of talent when divorced from character, by which is here meant, not so much private virtue,--for John’s private vices were shared with others of his family and his time,--but merely common honor, trustworthiness, and steadfastness. Even in his wickedness John was shifty and false, and his loss of his empire was due, not to any single blunder or series of blunders, but to the supreme sin of lack of character.

It is thus possible to see how largely the collapse of the Norman empire was bound up with the family history of Henry II--the foolish indulgence of the father, the ambitions and intrigues of the mother, the jealousies, treachery, and political incapacity of the sons. A personal creation, the Plantagenet state fell in large measure for personal reasons. If it was Henry’s misfortune to have such sons, one may say it was also his misfortune to have more than one son of any sort, since each became the nucleus of a separatist movement in some particular territory. The kings of France, it has often been pointed out, had for generations the great advantage of having a son to succeed, but only a single son. The crowning of the French heir in his father’s lifetime assured an undisputed succession; the crowning of the Young King left him dissatisfied and stirred up the rivalry of his younger brothers.