A Concise History of the Common Law. Theodore F. T. Plucknett
but from the point of view of Norman efficiency the reign was disappointing: still,
“to those who do not place order above everything and who realise how oppressive Henry’s government was becoming in spite of its legality, it must always remain a moot question whether Stephen’s reign was such a total set-back as the ecclesiastical writers of the day would have us believe”.5
HENRY II’s EMPIRE
With his successor, Henry II, we come to one of the most critical epochs in the history of the common law. By inheritance or by marriage he had acquired the rulership of England, Normandy, Aquitaine and Anjou, and like many of his barons divided his time between England and the continent. This close connection with France was to have important results for English law as we shall see later. Whatever the lessons of Anglo-Norman public administration, the revival of learning now in progress may have brought broader views and more generous ideals. Stubbs has made the attractive suggestion that perhaps the rapid growth of the universities
“conduced to the maintenance in the educated class of an ideal of free government, drawn from ancient Greek and Roman history, which, although never likely to be realised in detail, tended to make tyranny such as that of William Rufus impossible.”1
It must never be forgotten that the general standard of learning and culture of a nation has a large part in determining its law and polity.
CONSTITUTIONS OF CLARENDON
The reign opens (1154) with the confirmation of Henry I’s Charter of 1100, and with the great conflict between the King and Archbishop Becket. The separation of the ecclesiastical courts by William the Conqueror had had unexpected results, for in the succeeding hundred years the Church had developed a large mass of canon law and claimed wide jurisdiction. This law Becket determined to apply rigorously. Henry was equally determined to impose his own lay law (which also had recently been considerably enlarged in content and strengthened administratively).2 Many people were amenable in criminal matters to both jurisdictions, and Becket proclaimed that such people should not be tried twice—in other words, they should be tried but once, and that in the Church courts. Then certain things also were subject to both jurisdictions—Church lands, and the rights of ecclesiastical patronage (called advowsons). Finally, at a council in 1164 all the magnates of the realm “recognised” (the word is borrowed from the “recognition” or verdict of a jury) a list of customs which they declared were the practice of the reign of Henry I.
This statement, called the Constitutions of Clarendon, Henry II proposed as the basis of a compromise.3 Some of these provisions repeat practices dating from the reign of William I, such as in requiring the King’s permission before a tenant-in-chief can be excommunicated, or an appeal carried from the Church courts in England to Rome (cc. 7, 8, 10). Chapter 13 introduces the striking rule that a lord shall be held responsible by the King if his servants do wrong to a bishop. All litigation concerning advowsons is to be in the King’s court (c. 1), and so also cases involving the Church’s lands unless they be held in free alms (a tenure comporting no earthly services, and peculiar to Church property), but the fact of free alms or lay tenure is to be decided in the King’s court—which had been the rule in Normandy as well (c. 9). Chapter 15 contains the highly important rule that no plea of debt shall be withdrawn from the King’s jurisdiction on the grounds that the debt was accompanied by an oath or pledge of faith—spiritual censures may be imposed for breach of faith, but the civil jurisdiction over debt is not to be thereby ousted. This clause was not an unmixed benefit, for although the State thereby appropriated to itself a large jurisdiction over contract, nevertheless the law of the Church in this field was rapidly becoming more modern, more equitable and less formalistic. She had long punished breach of faith as a crime, and was soon to extend the idea and proclaim in addition the enforceability in law of promises (opinions to this effect appear first in 1212).1
Finally, it was declared by chapter 3 that clerks (that is to say, all who were in major or minor orders) when under accusation of crime should first answer in the King’s court, and then be remitted for trial by the bishop, and if he convicted, then they were to be returned to the lay court for punishment, for Henry insisted that degradation (the severest penalty the Church could inflict) was too mild for felonies. Last of all, Henry objected to laymen being tried in ecclesiastical courts, even for canonical offences, merely upon informations. So he offered the bishops the aid of a sheriff’s jury of presentment if the Church could find no other means of getting a public accuser.2
This compromise on the basis of old customs was effective, except as to the punishment of convicted clerks. On this point Henry had to yield after the murder of Becket in 1170, and thenceforward “benefit of clergy” eventually began to operate as a sort of first offender’s law, for it was the later rule that the culprit escaped punishment for the first offence only on proving his clergy.
THE EXCHEQUER
After the dramatic murder of Becket the interest turns to the rapid development of the administration under Henry II’s officials. The Treasury was under Nigel, Bishop of Ely (a nephew of Henry I’s Justiciar, Roger, Bishop of Salisbury), who further elaborated its constitution and procedure. Finally, having bought the office of Treasurer he conferred it upon his son, Richard fitz Nigel, Bishop of London, who wrote an extremely detailed account of the working of the Exchequer called the Dialogue of the Exchequer (1177-1179).3
The last ten years of the reign are dominated by Ranulf de Glanvill, the Justiciar. A competent general, diplomatist and judge, although an unscrupulous sheriff (he was twice removed from office), his name was attached to the first treatise upon the common law. The date is soon after 1187 and Glanvill’s nephew, Hubert Walter, has been suggested as possibly its author. It is a short, simple book, for the common law was neither very extensive nor very complicated. But for all that, it set the style of legal literature for many centuries to come, for the author of Glanvill invented the method of writing law in the form of a commentary upon the different writs.1
THE PLACE OF HENRY II
There are many other great events of this reign which we shall describe more fully in later chapters of this book. The extension of the system of itinerant justices; the growing definition of the courts of law; the widespread use of the jury; the establishment of the petty assizes2 as speedy methods of trying cases of recent dispossession of land; the Assize of Clarendon (1166) remodelling criminal procedure and systematising the presenting or grand jury;3 the Assize of Northampton (1176) which strengthened the claims of an heir to land against the feudal lord; the Assize of Arms (1181) which reorganised the local defence and police measures—these are only the greatest of the many reforms of Henry II’s reign. In the words of Bishop Stubbs:
“Henry II was far more than an inventor of legal forms or of the machinery of taxation. He was one of the greatest politicians of his time; a man of such wide influence, great estates, and numerous connections, that the whole of the foreign relations of England during the middle ages may be traced directly and distinctly to the results of his alliances and his enmities. He was regarded by the Emperor Frederick, by the Kings of Spain and Sicily, by the rising republics of Lombardy, by the half-savage dynasts of Norway, and by the fainting realm of Palestine as a friend and patron to be secured at any cost. He refused the crowns of Jerusalem and Sicily; he refused to recognise the anti-pope at a moment when the whole influence of the papacy was being employed to embarrass and distress him. His career is full of romantic episodes, and of really great physical exploits.
“Yet the consent of the historians of the time makes him, first and foremost, a legislator and administrator. Ralph Niger, his enemy, tells how year after year he wore out men’s patience with his annual assizes; how he set up an upstart nobility; how he abolished the ancient laws, set aside charters, overthrew municipalities, thirsted for gold, overwhelmed all society with his scutages, his recognitions, and such like. Ralph de Diceto explains how necessary a constant adaptation and readjustment