Fusion completed at the accession of Henry II. ration of order. Saxon, and Mercian law became obsolete and disappeared.1 No dividing lines survived except such as were drawn by slight differences in local custom.2 Into the greater mass of the united English nation the smaller Norman mass was gradually absorbed; the "conquerors were conquered; the Normans became Englishmen." As early as the reign of Henry I. causes began to work which, before a century had passed by, had drawn together into one nation all natives of the soil, regardless of older differences of race and speech.3 Under the pressure of common calamities, national enmities were during Stephen's reign in a great measure forgotten. And through the agency of frequent intermarriage the work of fusion so rapidly advanced that a writer of the time of Henry II. is obliged to confess that, without a careful examination of pedigree, it was impossible to ascertain in his time who was Norman and who was English. It may therefore be safely assumed that by the time of the accession of Henry of Anjou the two races had become fused together into one nation scarcely conscious yet of its own unity. As soon as this condition of things was reached, in which it was difficult to distinguish an Englishman from a Norman, all legal distinctions in favor of one race as against the other necessarily passed out of view.5 2. During the protracted struggle which occupies the period of anarchy known as the reign of Stephen, the royal authority which Henry I. had done so much to consolidate came to an end; the administrative system which Bishop Roger had so thoroughly organized broke down; and England, for the first and last time in her history, sank into that state of feudal anarchy which the Conqueror by his far-sighted policy had striven to prevent. For a time the land lay helpless in the hands of the barons, who intrenched themselves in their 1 "The terms are become archaisms which occur in the pages of the historians in a way that proves them to have Stubbs, Const. Hist., vol. i. p. 545, citing Simeon of Durham, ed. Hinde, vol. i. pp. 220 become obsolete.' 222. 2 These, Glanvill says, are too numerous to be put on record. - De Legibus, lib. xii. c. 6. 3 Freeman, Norm. Cong., vol. v. pp. 98, 438. 4 "Jam cohabitantibus Anglicis et Normannis, et alterutrum uxores ducentibus vel nubentibus, sic permixtæ sunt nationes, ut vix discerni possit hodie, de liberis loquor, quis Anglicus quis Normannus sit genere." — Dialogus de Scaccario, i. c. 10. 5 As to the gradual extinction of Englishry, see Bracton, 135b; Fleta, lib. i. c. 30; Bigelow, Hist. of Procedure, p. 81. unlicensed castles, and arrogated to themselves all the rights of petty despots. Not until both of the contending parties had well-nigh reached a state of exhaustion was the long anarchy brought to a close by the Treaty of Wallingford, which was attended by an elaborate scheme of reform that contemplated, among other things, the disarming of the feudal party, the demolition of the unlicensed castles, the banishment of all mercenary soldiers, the resumption of all royal rights that had been usurped by the baronage, the restitution of estates taken from their lawful owners, the abolition of the fiscal earldoms, and the appointment of sheriffs to reestablish order.2 Upon the death of Stephen in 1154,3 Henry of Anjou, then in his twenty-second year, came to the throne pledged to the task of bringing peace and prosperity out of anarchy and exhaustion upon the lines of that project of reform which had followed the Treaty of Wallingford. To the complete performance of the work of restoration the first ten years (1154-1164) of Henry's reign were chiefly devoted.* During the first three years of the reign, however, the greater part of the work was actually accomplished. Within that time the feudal party in the teeth of fierce resistance from some of its strongest members was disarmed, the unlicensed castles were destroyed, the royal estates resumed, the mercenaries banished, the curia regis and exchequer reëstablished, and careful provision made for both central and provincial judicature.5 scutage, or money. 3. It was impossible, however, for Henry, the ruler of vast The insticontinental dominions, to confine his energies exclusively to tution of the affairs of England. In 1159 he became involved in a for- shield eign war by attempting to enforce the claim of his wife on the county of Toulouse. As it was highly inconvenient to carry on military operations against the most distant province of France by the aid of feudal levies who were only bound to a limited service, Henry hit upon an expedient through which money 1 Cf. Green, Hist. Eng. People, vol. i. p. 155. 2 As to the scheme of reform that attended the Treaty of Wallingford, see above, p. 277. 8 Gervase, cc. 1375, 1376. 5 For the details of the work accomplished by Henry in 1155, '56, '57, see Stubbs, Const. Hist., vol. i. pp. 449-455Henry did not land in England until the 8th of December, 1154. 6 R. de Monte, A. D. 1158, 1159. could be realized for the employment of mercenary soldiers. 4. The full scope of Henry's policy was not only to establish the reign of law, but to reduce all orders of men to a state of equality before the same system of law. The most formidable obstacles which stood in the way of the complete execution of this design were the baronage on the one hand, with their private jurisdictions, and the clergy on the other, with their far-reaching claims of exemption from the ordinary process of the temporal tribunals. Not long after Henry's return in 1163 the prosecution of his scheme of reform brought him into conflict with the clerical order, at whose head now stood Thomas Becket, who, a year before, had been elevated to the see of Canterbury. At the beginning of the 4 Benedictus, vol. i. p. 278; Hoveden, ii. 261; Gervase, c. 1459; Select Charters, 153. 5 Will. Fitz-Stephen (ed. Giles), vol. i. p. 200; R. de Diceto, 531. "The former must be compelled to agree to the restriction of their hereditary jurisdictions within the smallest compass, and the latter to allow themselves to be, in all matters not purely spiritual, subject to the ordinary process of law." Select Charters, p. 21. and the reign Thomas of London, the pupil of Archbishop Theobald, had been recommended by his patron as an able adviser to the young king, who at once raised him to the office of chancellor. This office Thomas held until his unfortunate elevation to the primacy of the kingdom.2 In his new station the temper of Thomas at once passed through a marked Thomas as primiate. transformation; the knightly courtier now assumed the garb of the ascetic; the foremost lawyer and statesman of the kingdom now became the champion and assertor of the rights and privileges of the church. The first dispute between the archbishop and the king the details of which are very First quarrel obscure seems to have arisen out of the opposition of the between former to the levying of a Danegeld in some new form Thomas prejudicial to the interests of the sheriffs, and in favor of the king touching taxaroyal revenue, and in a form which would vest it as a per- tion. manent revenue in the king without any express grant by the national assembly. Thomas, as the leader of the first constitutional opposition to an English king in a matter of Thomas taxation,3 is recorded to have said: "We will not, my lord runner of king, saving your good pleasure, give this money as revenue; Hampden. but if the sheriffs and servants and ministers of the shires will perform their duties as they should, and maintain and defend our defendants, we will not be behindhand in contributing to their aid." To which the angered king answered: "By the eyes of God, it shall be given as revenue, and it shall be entered in the king's accounts; and you have no right to contradict; no man wishes to oppress your men against your will." Thomas then replied: "My lord king, by the reverence of the eyes by which you have sworn, it shall not be given from my land, and from the rights of the church not a penny."4 With this event the enmity between the king and the primate begins. In the following October, in the Council of Westminster, a 1 Gervase, c. 1377. 2 For a sketch of the life of Thomas, see Green, Hist. of the Eng. People, vol. i. pp. 164-170. 3 "Even those who are most unwilling to allow any praise to one who bore the titles of saint and martyr have been driven to confess that in this matter the part of Thomas did but fore stall the part of Hampden." - Free- 4 As to the obscure details of this the fore munities, 1163. The second new quarrel arose between the primate and the king quarrel touching touching the exemption of the clerical order from the jurisclerical im- diction of the temporal tribunals. From the time of the Conqueror's famous ordinance separating the spiritual from the temporal courts, the punishment of members of the clerical order guilty of criminal offences had been attended with great difficulty. In such cases the ecclesiastical courts. would not allow the lay tribunals to take jurisdiction, and the ecclesiastical courts themselves could only inflict spiritual penalties.1 The provision that the king and the sheriff should, under certain circumstances, enforce the judgments of the bishops, had, through the jealousies of the two estates, failed of its purpose.2 Under these circumstances a large number of clerks guilty of serious criminal offences, besides a large number who falsely claimed to be clerks, escaped all real punishment. To remedy these evils in the administration of the criminal law, Henry now resolved that all criminals, clerical as well as lay, should be tried in the ordinary tribunals. If a clerical criminal confessed or was convicted, he should first be degraded by the bishops, and then handed over to the officers of the law for punishment. Henry at the same time complained of the exactions of the spiritual courts, and he finally demanded that the bishops should agree that the proceedings of their courts and the rights of the clergy generally should be regulated by the customs which had prevailed in the time of Henry I. Thomas refused to accede unconditionally to the king's demands, and the result of his refusal was a qualified assent of the bishops, "saving their order." To definitely settle the controversy, Henry called together all the bishops and barons at Clarendon, in January, 1164, and there renewed his demand that the customs regulating the rights of the church in use in the time 1 "This state of things existed at its height from the beginning of the reign of Stephen until the tenth year of the reign of Henry the Second."- Bigelow, Hist. of Procedure, p. 34. Council at Clarendon, 1164. 2 The provision referred to was contained in the Conqueror's famous ordinance separating the spiritual from the temporal courts. Cf. Stubbs, Const. Hist., vol. i. pp. 283, 463. 8 "The clerical order in the Middle Ages extended far beyond the priest hood; it included in Henry's day the whole of the professional and educated classes." — Green, Hist. Eng. People, vol. i. p. 164. 1384. Hoveden, vol. i. p. 219; Gervase, c. 5 Such were the results of the Council of Westminster which met in October, 1163. Cf. Stubbs, Const. Hist., vol. i. P. 464. 6 R. Diceto, c. 536; Gervase, c. 1385. |