Stephen in the field. But before a decisive battle could be fought, the barons intervened as mediators; the archbishop and the bishop of Winchester also counselled conciliation; and the result was the Treaty of Wallingford, through which Treaty of Wallingthe evils of the long anarchy were brought to a close.1 This ford. treaty, in which Stephen was recognized as king and Henry as his heir, was attended by an elaborate project of reform which contemplated among other things the resumption of all royal rights that had been usurped by the baronage, the restitution of estates taken from their lawful owners, the razing of all unlicensed castles, the banishment of the foreign mercenaries from the country, and the appointment of sheriffs to reestablish justice and order.2 The death of Stephen, Death of within a short time after the pacification, removed the only and accesStephen remaining obstacle from the path of Henry, "whose states- sion of manlike activity, whose power of combining and adapting Anjou. that which was useful in the old systems of government with that which was desirable and necessary under the new, gives to the policy which he initiated in England almost the character of a new creation." 3 1 "The result was stated in the form of a treaty to settle the succession. Each of the parties had something to surrender and each something to secure." — Stubbs, Const. Hist., vol. i. p. 332. 2 The treaty itself is preserved in the form of a charter of Stephen, printed in Rymer, i. 18. But the en tire scheme of reform which attended 8 Stubbs, Const. Hist., vol. i. p. 336. Henry of The growing to gether of Old-English local machinery and Nor of central tion. CHAPTER III. HENRY OF ANJOU.1- THE PERIOD OF FUSION. 1. By the death of Stephen the strictly Norman period of English history was brought to a close. The character of that period, and the immediate changes which it wrought in government, in law, and in tenure, have in the preceding man system chapter been briefly reviewed. The leading object of that administra- review was to point out the fact that, although the Conquest brought with it a change of dynasty, the establishment of a new nobility, and a sweeping confiscation through which most of the great estates were transferred from English to Norman hands, yet that it did not involve the displacement of the English nation, nor a wiping out of the immemorial laws and political institutions of the conquered race. The master of the history of the Norman conquest never grows weary of enforcing the truth that the importance which belongs to it is not the importance which belongs to a beginning or an ending, but the importance that belongs to a turning point; 2 that the coming of the Normans only gave a fresh impulse to causes already at work, only hastened tendencies to change already begun. In the Old-English system all the elements of feudalism were imbedded; and long before the Normans came these elements were gradually becoming blended: the thegn was passing into the tenantin-chief, the men of the dependent township were surely be 1 The most perfect sketch ever drawn of the personal and political character of this great prince is contained in Bishop Stubbs's preface to Benedict of Peterborough, whose chronicle is the leading authority for the reign. The vividness, the warmth, the brilliancy of the picture, is like an oasis in the desert to the student who has marched across the sands of the Constitutional History. See Rolls Series, Benedictus, vol. ii. Bishop Stubbs's view differs widely from that of Sir Francis Palgrave, who regards Henry's reign as a period of revolution as a second conquest. "I can find the most evident and cogent proof," says Sir Francis, "that a great revolution was effected, not by William, but by Henry Plantagenet." See Normandy and England, vol. iii. p. 601. For Mr. Freeman's view, which agrees in all material particulars with that of Bishop Stubbs, see Norm. Conq., vol. v. pp. 436-459. 2 Freeman, Norm. Conq., vol. i. p. 1 ; vol. v. p. 434. ern consti the fusion. coming the tenants of the lord in whom the title to the lands of the cultivating community was vested. The "process of feudalization" which everywhere in Europe was transforming the mark into the manor, the village-community into the fief, the elective chief of the people into the hereditary lord of the land,1 did not fail to extend itself to the English kingdom. But in the continental land from which the conquerors came these feudal ideas had reached a far higher and more perfect development than they had yet reached in the insular system. By the coming of William two kindred systems of government and tenure, both tending in the same direction and yet in different stages of development, were brought into the closest contact, and out of the fusion be- The modtween the two has grown the modern constitution.2 The tution the period of transition and growth which intervenes between outcome of the ancient constitution and the constitution in its modern form has been happily divided into two stages: the first or Norman stage, embracing the reigns of the four Norman kings, is the stage during which the great mass of foreign elements and influences were infused into the blood, the language, the laws, the political institutions, of the English nation; the second or Angevin stage, embracing the reigns of Henry II. and his sons, is the stage during which the foreign and native elements were worked together into a new combination which retained the strongest elements of both.3 The most striking single fact which an analysis of the result Superhas so far revealed is, that in the new combination the super- Norman, structure is Norman, the substructure Old - English. The substrucfirst or Norman stage of the transitional period has already English. been reviewed. In the preceding chapter the attempt was made to define in general terms the character of the new elements, and the amount of change or innovation introduced 1 See Sir Henry Maine's review of "The Process of Feudalization," Village Communities, lecture v.; Ancient Law, pp. 101-108. 2 For a more complete statement of this whole subject with the authorities, see the preceding chapter, pp. 238-248. "The Anglo-Saxon and the Norman institutions had been actually in a state of fusion since the Conquest, and the reign of Henry gave to the united systems the character which has devel oped into the English constitution.". 3 Freeman, Norm. Conq., vol. v. p. 439. "The principle of amalgamating the two laws and nationalities by superimposing the better consolidated Norman superstructure on the better consolidated English substructure, runs through the whole policy.”. Stubbs, Const. Hist., vol. i. p. 278. structure ture Old Norman central sys tem the outgrowth of the new kingship. Central and local systems first drawn together through of the justices itinerant. during the reigns of the Conqueror and his sons. The effort was then made to draw out the fact that, while the Norman kings were ever striving to consolidate and strengthen the royal authority by building up around it a new system of central administration, they were also careful to preserve by express ordinance the ancient customary law of the realm, together with the system of local courts in which that law had been immemorially administered. The distinctive feature of the Norman period, so far as constitutional history is concerned, is the development of a new system of central administration with the source of its strength in the royal authority. In order to discharge the many vast and intricate duties which the growth of the royal power after the Conquest concentrated around the person of the king, it became necessary for the crown to organize out of the main body of the great council a smaller body, which could be charged under the king's direction with the whole work of central or national administration. Out of this inner council, which soon came to be known by the name of curia regis, all the administrative institutions of the kingdom seem to have sprung. During the reign of Henry I. the curia was organized by Bishop Roger into a strong judicial and ministerial body, whose methodical procedure imposed upon the despotic powers of the crown the restraints at least of administrative routine. In this reign the financial department of the curia, now called for the first time the exchequer, was also made a more efficient instrument for the collection of the revenue. In Henry's time detachments of justices were first sent from the curia to assess the revenue and to adjust the business of the exchequer in each shire.2 In this way the new system of central administration was first brought into direct contact with the local machinery of the constitution. But, excepting the occasional contact which thus arose out of the fiscal visitations of the justices, the central and local systems stood apart during the reigns of the Norman kings. Not until the Angevin period is reached, not until the reigns of Henry II.3 and his sons, 1 "In conformity with the system of France and other feudal countries, there was one standing council, which assisted the kings of England in the collection and management of their reve nue, the administration of justice to suitors, and the dispatch of all public busi ness."— Hallam, M. A., vol. ii. p. 317. 2 See above, p. 247. 8 "His reign was the period of amal is there anything like a growing together of the Norman system of central administration and the tenacious machinery of Old-English local freedom embodied in the organizations of the township, the hundred, and the shire. law. The same agencies which, during the Angevin reigns, Commixbrought about the amalgamation of the new administrative ture of royal system and the ancient local machinery, also brought about tomary a union between the new system of royal law, which radiated from the curia regis, and the ancient system of customary law as administered in the local courts. A great German writer has lately pointed out the fact that in the study of Teutonic law the distinction must be sharply drawn between such law as flows from a royal or official source, and such as flows from a customary or popular source.1 By the application of this idea to the special investigation of the origin of the English jury, rich results have already been attained. By keeping this distinction steadily in view, Brunner has finally dem- Origin of onstrated the fact that out of the union of a certain branch the trial jury. of royal law in the form of special commissions or writs of inquiry issued from the curia regis — with a certain kind of witness-proof imbedded in the customary law has been gradually developed the English jury of judgment, the trial jury of modern times.2 races. Before attempting, however, to work out in detail the pro- Union of cess of fusion between the systems of central and local administration, and between the systems of royal and customary law, it will be helpful to indicate in general terms the steps by which the two races became fused into one nationality. The effects of the Conquest on national unity were twofold. In the first place it had the effect of uniting the English among themselves. By the coming of William the tendency to provincial isolation was checked, and the whole realm united in one consolidated kingdom which was never afterwards divided. After the time of Stephen, even the threefold division of the kingdom into the Dane law, the West gamation, the union of the different elements existing in the country, which, whether it be looked on as chemical or mechanical, produced the national character and the national institutions." Preface to Benedict, Rolls Series, vol. ii. p. xxxiii. 1 As to Sohm's views upon this sub- 2 See Die Entstehung der Schwur- |