The
justices
de banco are the justices of the bench at West-
minster.
minster.
Cambridge Medieval History - v5 - Contest of Empire and the Papacy
.
cuius sapientia conditae sunt leges subscriptae quas Anglicanas vocamus.
"
Howden, 11, 215. Maitland's doubt as to Glanville's authorship of the treatise rests
on an unusual translation of the verb condo. The normal translation of condo in
this context would be to write down or compile. A comparison of the treatise with
the surviving judicial records of the early thirteenth century shews that it is the
work of a practised judge.
2 Cf. supra p. 573, note.
CH. XVII.
37-2
## p. 580 (#626) ############################################
580
The Sheriffs
king. Manasser Biset the steward, Warin Fitz Gerald the chamberlain,
Richard de Humez the constable, were his constant companions. Until
his disgrace, Henry of Essex, as constable, was constantly attendant on the
king. Unlike his fellows of the household, he was of baronial rank. His
forfeited honour was given by the king to Henry Fitz Gerald, brother
of Warin, and like him a chamberlain. In the later years of the reign, the
personnel of the court was more varied; judges, and other men who served
the king without definite office, appear beside the regular household
officials. Much research remains to be done upon the curiales of Henry II.
That he reposed great confidence in them is certain. He rewarded them
with land, but not lavishly, though some of them have left their names
to English villages: Manasser Biset is immortalised in the name of Preston
Bisset in Buckinghamshire. Before the end of the reign there are definite
traces of the organisation which was to develop into the wardrobe of the
thirteenth century. The names of many chamber-clerks appear on twelfth-
century Pipe Rolls. They were already employed in administrative work
as well as in purely household functions. It is only from the examination of
unprinted documents that more can be learned of their origin and status.
If the men in the king's immediate service are as a body obscure, his
sheriffs are all known by name, and their territorial position can often
be ascertained precisely. The office still gives a field for research, but it
is certain that during the reigns of Henry II and his sons the sheriff
took the first and all-important steps towards his present position of
forgotten dignity. The Norman kings had suffered from the over-mighty
sheriff, and had tried to check his power. Henry I had often put his
own curiales into sheriffdoms and united several counties in the hands
of one or two trusted ministers. But the lists of sheriffs in Henry II's
early years still shew baronial names. In Devonshire, the earl was sheriff
until 1157. Northumberland was held by William de Vesci from 1157
to 1170, and by Roger de Stuteville from 1170 to 1185. William de
Beauchamp was sheriff of Worcestershire from 1155 to 1169, of Glou-
cestershire from 1157 to 1163, and of Herefordshire from 1160 to
1169. Wiltshire was held by Patrick, Earl of Salisbury, from 1155 to
1160. Throughout the reign, Shropshire was held by local magnates.
A baron was not inevitably the king's opponent, and a baronial sheriff
may have been as good an officer as any curialis. Moreover, many
sheriffs of baronial rank held their offices because they had become
curiales, and were competing for the prizes which the king's service
offered. Ranulf de Glanville was the chief among many such men.
Many of Henry's sheriffs were undistinguished knights in the counties
they held. Adam de Catmere, sheriff of Berkshire from 1160 to 1170,
and of Oxfordshire from 1164 to 1170, held half a knight's fee at Cat-
more in Berkshire of William, Earl of Derby. The south Lincolnshire
knight, Alfred of Pointon, sheriff of Lincolnshire in 1166 and 1167, and
again from 1170 to 1174, held three knight's fees of Maurice de Craon,
.
## p. 581 (#627) ############################################
The Sheriff's work
581
and was his steward. Even at the beginning of the reign, some shires
were held by curiales. The important county of Hampshire was held
by a succession of them. Turstin, sheriff until 1160, had been the clerk
of a chamberlain in the reign of Henry 11. His son succeeded him, and
was followed from 1170 to 1179 by Hugh de Gundeville. From 1174
to 1177 Hugh was also sheriff of Northamptonshire, from 1177 to 1179
he was sheriff of Devon, and his name frequently occurs in lists of
Henry's judges. From 1155 to 1160 Northamptonshire was held by
another minister who often served as judge, Simon son of Peter of Brix-
worth in that county. By the end of the reign it was the rule rather
than the exception that the sheriffs should be ministeriales. The change
was probably the result of Henry's policy rather than the policy itself.
Henry was controlling the excesses of sheriffs, and at the same time
increasing their work, so that barons may have become less anxious to
hold the office. The large sums offered, though not always paid, for
shrievalties at the beginning of Richard's reign may suggest that the
buyers hoped for laxer administrative control under a new king-a hope
that was not realised.
The judicial reforms introduced by Henry II materially increased the
labours of the sheriff. In addition to the financial and military responsi-
bilities which had lain upon him in the Norman time, he was now required
to give effect to an elaborate system of centralised justice. The earliest
rolls of the itinerant justices reveal the unceasing labours of the sheriff
in the time of Henry's sons. He was responsible for the most minute
details of judicial administration; he must receive and produce the writs
which began the innumerable pleas resulting from Henry's legal re-
forms; he was responsible for summoning every person necessary for the
conduct of a plea; he had to give effect to the justices' decisions, and
keep a record of his action; he must answer for the most meagre chattels
of criminals that had fallen in to the king. Any failure in the perform-
ance of these duties meant that he would be called to account before the
justices. It is not remarkable that curiales appear in increasing numbers
among the sheriffs of Henry's later years. Unless the sheriffs were brought
into close relations with the king, his plan of a judicial organisation
extending over the whole land and centring upon his court was bound to
be fruitless.
In 1170 Henry sent bodies of commissioners or justices round the
country to inquire touching the behaviour of the sheriffs, their bailiffs,
and all who were doing the king's business in the shires. Generally
known as the “Inquest of Sheriffs," the inquiry had a much wider scope.
)
It entered into the financial relationship between lords and their men,
with which the king had normally no concern. It covered only the
four years of Henry's recent absence abroad. Two fragments of the
original returns have survived, relating respectively to East Anglia and
1 Round, The Rise of the Pophams, in The Ancestor, vii, 59.
CH. XVII.
## p. 582 (#628) ############################################
582
The Inquest of Sheriff's
the borough of Worcester. The East Anglian fragment relates almost
exclusively to the payments made to the Earl of Arundel and other barons
by the men on their own land and on land held in custody. Payments
were made to the earl to help him in his work on the Marches of Wales,
in his expedition to France, in his difficulties with the Jews, in his con-
tribution to the aid for marrying the king's daughter, and in his journey
to Saxony with her. The Worcester fragment, on the other hand, deals
almost entirely with payments to the sheriff. It shews that the sheriff,
William de Beauchamp, took from the borough forty-two pounds in the
first two years in question, and fifty pounds in the last two years. The
farm of the borough was fixed at twenty-four pounds when, at a later
time, the burgesses were allowed to pay it direct into the Exchequer.
The burgesses also made payments to him for the conveyance of treasure
and prisoners, and on the occasion of his daughter's marriage. William
de Beauchamp was one of the sheriffs removed before the inquiry was
made, and many others were removed afterwards. Only in Cumberland,
Devon, Kent, Rutland, Staffordshire, Surrey, and Wiltshire, was the
custody of the shire in the same hand for any appreciable period before
and after 1170. Of these counties, Rutland was held by the king's
constable, Richard de Humez, and Surrey and Kent were in the custody
of Gervase of Cornhill, a member of a family which owed its wealth to
London trade and had entered the king's service. It is evident from the
fact of the enquiry that the king did not intend the government of the
shires through sheriffs and other officers to rest on exploitation. No
other enquiry was made in this reign with the principal object of dis-
covering the abuses in local government, but, when the king's justices
went round the country, people had the opportunity, if they dared to use
it, of expressing their grievances. On the Lincoln Assize Roll of 1202
occurs an entry to the effect that certain sums of money have been taken
from merchants to the use of the sheriff, his bailiff, and his bailiff's clerk,
for the right of leading corn from county to county through England.
It must have been possible for the sheriff to make considerable profits
in a legitimate way. The amounts of his profits from the local courts of
justice must have depended on the justice he gave, and a period of peace
and careful management meant that the value of the royal land farmed
by the sheriff increased considerably. That Henry II had no intention
of allowing the sheriff to obtain the whole of this increment is shewn by
the fact that he had to account for variable amounts, known later as
incrementa, apart from and in addition to his farm. Even so, the sheriff
must have made money on his farm. The incrementa were unpopular
alike with the sheriffs and the people, and the first issue of Magna Carta
declared that counties should be at their old farms, without any incre-
ment, a clause that, for obvious financial reasons, it was impossible to
retain. When lands escheated to the king, they were generally farmed
by the sheriff or by some magnate or curialis who was recompensed for
## p. 583 (#629) ############################################
The Sheriff's aid
583
his trouble by the amount he raised beyond the sum for which he farmed
the escheat. But sometimes escheated lands were held in custodia, that
is, the holder strictly accounted for them to the king. Like that of his
father, the reign of Richard I was a time of administrative reform. The
large amount of land that came in to the king in 1194, mainly as a
result of his brother's rebellion, necessitated fresh arrangements. Two
escheators were appointed, William de Sanctae Mariae Ecclesia, and
Hugh Bardolf, who held the escheats in custody, and rendered detailed
accounts for them. William held the escheated lands in the southern
and Hugh in the northern part of England. It was doubtless experi-
ments like this, compelled by the pressure of increasing business, which
suggested the practice, developed in the next century, of sometimes
letting shires themselves to their sheriffs in custodia instead of ad firmam.
In addition to profits of uncertain amount and diverse origin, the
sheriff was entitled to a customary payment from the men of the shire,
known as the sheriff's aid. This payment enters into general history as
one of the causes of dispute between Henry II and Becket in 1163. The
king is said to have wished to annex the money given to the sheriffs to
his own revenues. It is probable that he intended the sheriffs to account
at the Exchequer for the sheriff's aid as for the money which they col-
lected on the king's behalf. The significance of his proposals can only
be conjectured, for they were abandoned in face of the archbishop's
protest. That Henry wished to take possession of the sheriff's aid with-
out compensation to the sheriffs for its loss is highly improbable; he
depended too much on his sheriffs to alienate them by an arbitrary
measure of confiscation. He may well have been feeling his way towards
an increased centralisation of local government, and wished, as a step
towards this end, to appropriate the ancient sheriff's aid and compensate
the sheriff's by a payment direct from the treasury. It is also probable
that his proposals were suggested by the close resemblance between the
sheriff's aid and the Danegeld. The sheriff's aid was a geld, a tax laid upon
land according to the assessment which determined the incidence of the
Danegeld; it descended from the fiscal system of King Edward's day.
Various passages in private charters shew that it was paid four times a year.
A Lincolnshire charter of the reign of Henry II refers to it as the “four
aids of the sheriff,” a Leicestershire charter as the “four gelds of the
shire. " It was natural that Henry should wish the sheriff's aid to follow
the other ancient gelds into his treasury. Had it done so, its amount
and incidence would be less obscure at the present day. In the reign of
Edward I, the sheriff's aid in the counties of Cambridge and Huntingdon
seems to have brought in approximately thirty pounds a year. It was not
an adequate recompense for the sheriff's manifold labours, but the
income which it brought him was not negligible.
Stenton, Danelaw Charters, p. 127. Haverholme Cartulary, Lincs. Notes and
Queries, Vol. xvii, p. 48.
1 יי
1
CH. XVII.
## p. 584 (#630) ############################################
584
Local justiciars
t
Even under the Norman kings, the sheriffs had not been the sole
dispensers of royal justice in the shires. Apart from the sporadic ap-
pearance of royal officials sent round the country to do justice, there is
evidence that already in the reign of William II local officers known as
justiciars were in existence. The local justiciarship can be traced through
the reigns of Henry I and Stephen, but it is not generally realised that
the office still existed in the reign of Henry II. In writs of Henry II,
few of which have yet been printed, there are definite references to the
justiciars of Lincoln', Norfolk”, Warwick*, Sussex`, York, and Notting-
ham'. It is probably to these officers that William of Newburgh refers
when he states, under the year 1154, that Henry “appointed in all the
districts of his kingdom ministers of right and law, to coerce the bold-
ness of the wicked, and do justice to those seeking it, according to the
merits of the cases. ” The relation of the local justiciar to the sheriff
and the shire-court is uncertain, but it is certain that he took precedence
of the sheriff in the shire.
The little that is known of these local justiciars suggests that Henry
did not long continue the practice of appointing them. In matters of
justice, he seems in his earliest years to have adopted his grandfather's
expedients, both employing local justices and sending out officers of his
court to do justice over a great stretch of the country. The year 1166
may be regarded as a turning-point. The Assize of Clarendon, issued in
that year, opens a new phase in the history of criminal jurisdiction in
England. The king then commanded that twelve lawful men of every
hundred and four lawful men of every village should declare on oath if any
in their hundred or village had been accused or suspected of being a robber,
murderer, or brigand, or a harbourer of such, since Henry became king.
The presentments of these jurors were to be taken before the sheriffs
and again before the justices. Those who were apprehended by reason
of such presentment were to have judgment before the king's justices
only, they were to go to the ordeal by water, and the chattels of the
guilty were to go to the king. Men of ill repute proved innocent by the
water were nevertheless to abjure the realm. Gaols were to be built in
counties where there were none, for the custody of prisoners awaiting the
coming of the justices. In the case of those apprehended in any other
way than through presentment, the procedure was to remain “as it was
and ought to be," a provision which allowed the sheriff' to deal with
crimes other than those specified, and with many minor offences, such
as petty assaults. This measure was a long stride towards centralisa-
tion. Ten years later, the Assize of Northampton, reinforcing that of
1 B. M. Harl. MSS. 742 f. 265. Cott. Vesp. E. xvi. f. 19b.
2 B. M. Cott. Galba E. 11 f. 31 d and 33d. Cott. Claud. D. xiu f. 41.
3 P. R. O. Exchequer K. R. Misc. Bks. 22 f. cxxv.
4 B. M. Cott. Faustina A. II f. 74b.
6 B. M. Cott. Vesp. E. xix f. 7.
## p. 585 (#631) ############################################
Judicial experiments
585
Clarendon, gave to the justices cognisance of other grave crimes which
had lain outside the scope of the earlier assize. For the first time in
English history, criminal justice was to be administered all over the
land in accordance with the same rules.
The years between 1166 and 1180 were years of experiment in the
centralisation of justice. The Assize of Clarendon was enforced by Earl
Geoffrey de Mandeville and Richard de Luci. The justiciarii or barones
errantes who conducted the Inquest of Sheriffs were large companies of
barons and clergy. But the judges who from 1168 onwards were doing
justice and assessing tallages in the shires were household and Exchequer
officials of the king. The Assize of Northampton of 1176 was put into
operation by six groups of three justices, whose work was made heavy
by the disturbance of the rebellion. When the king returned from
Normandy in 1178, he recalled the eighteen judges, and appointed five,
who were not to depart from his court but were to remain there to hear
complaints, so that if any matters needed special consideration they
could be determined by the king with the advice of his counsellors. This
provision originated no new court; it was an arrangement by which the
king, exercising his ancient prerogative of justice, might inspect the work
of his judges. He spent his time in England going from place to place,
and the five judges doubtless travelled with him. Richard de Luci retired
from the justiciarship in the next year, and Henry did not immediately
appoint a new Chief Justiciar. He divided the country into four districts
for the purpose of judicial administration. Ranulf de Glanville and
five other judges were placed in charge of the north; the three southern
districts were each put in charge of a bishop, who was also a curialis. In
1180 Glanville became Chief Justiciar. From that time, justices visited
the shires in almost every year. They inspected the local administration,
inquired into the king's rights, and assessed taxes; justice was only a
part of their work. These justices were intimately connected with the
Exchequer. It was thence they set out, and they returned there to hand
in their rolls; so the fact that the Exchequer was at Westminster
meant that Westminster became the centre of the judicial system. There,
judges sat almost continuously, for the Exchequer officials were the
judges.
The justices de banco are the justices of the bench at West-
minster. They did not form a different court from that of the justices on
eyre; there was but one court, and that the king's. The distinction
between the judges who sat at Westminster and those who went round
the country was narrow. The justices on eyre were governed by the
terms of a commission; those who sat at Westminster sat there pri-
marily to deal with pleas brought up by people who wished for the best
available opinion on their suits, and with pleas transferred from the
justices itinerant in the country.
The procedure described in Glanville's treatise is that of the end of
Henry's reign, when the king's judges appeared constantly in the shires,
CH. XVII.
## p. 586 (#632) ############################################
586
Centralisation of justice
and when his court was within the reach of every free man deprived
unjustly of his land. Of the means by which Henry brought about this
result all too little is known. The king could not force men to seek his
court for civil litigation; he could only attract them to it by giving
better justice than the courts of honours and manors, shires and hundreds.
No one doubted that it belonged to the king, if he chose, to see that
justice was done to those who sought it; appeal to the king was always
possible. The work of Henry II in centralising justice in the king's
court must not be overrated. The writs of Henry I suggest that the
rule of law, familiar to readers of Glanville, that no one need answer for
his free tenement in his lord's court without the king's writ or that of
his justiciar, may have been already established before 1135. Glanville
speaks of it as according to the customs of the kingdom, not as though
it were a recent enactment. The writ of right may well have been known
by that name before Henry became king; Conan, Earl of Richmond,
refers to it by name in a charter which must be earlier than 1158'. The
procedure by which a plea was removed from the feudal court to the
shire-court on the plaintiff proving in his lord's court before the sheriff
that his lord had failed to do justice was probably the same as that
described by Glanville, even in the first half of the century. The king
could always send his justices into the shire-courts to hear the suits in
process there. But the first condition to be fulfilled before the king
could take justice into his hand was the frequent appearance of royal
justices in the shires; only then would it be worth men's while to
appeal to the king.
With the advice of his barons, the king could always make general
statements of law. He could also send men round the country to inquire
into his rights by means of the sworn inquest. It is probable that Henry's
first step towards the centralisation of justice was to combine these pre-
rogatives. At or about the time of the Assize of Clarendon, he must
have declared that no man might be disseised unjustly and without
judgment of his free tenement, and commanded his justices to inquire
touching such disseisins within the period covered by the Assize. Ten
years later, in the Assize of Northampton, he made a general statement
that a man's heir should have such seisin as his ancestor had on the
day when he was alive and dead, and he commanded that, where the lord
of the fee had prevented this, the justices should inquire touching the
dead man's seisin and restore it to his heir. The justices were again
commanded to inquire into disseisins committed within the limit of time
covered by the Assize. These two enactments lie behind the procedure
begun by the writs of Novel Disseisin and Mort d'Ancestor, but they did
not immediately create those writs and that procedure. It appears as
though Henry at first made his benefits for a time compulsory that he
might make people realise their advantages before he put up definite
1 Harl. Chart. 48 G 41.
## p. 587 (#633) ############################################
The Grand Assize
587
writs and a definite procedure for sale. That the result of these enact-
ments was the taking of possession under the royal protection is true,
but it is certain that Henry and his justices did not set out deliberately
to protect. possession. Their aim was to quell the disorder of self-help,
and to provide a speedy remedy for the man unjustly dispossessed of his
tenement or prevented from entering into his inheritance. Writs of pre-
vious kings shew that here, too, he was working on foundations already
laid'. Henry II's genius lay in subtly devising a single means to fit the
many slightly varying circumstances.
It was not the partiality of feudal lords but the inadequacy of
feudal procedure that ultimately brought all free men into the king's
court. Feudal justice was slow. It was felt that a man must be present
in person to conduct his suit. Hence, there was developed a complicated
law of essoins, of excuses for non-attendance; an unwilling suitor could
prolong his plea almost indefinitely by making full use of his essoins.
When the justices of John's reign investigated complaints that a feudal
court had failed to do justice, the evidence often shewed, not that
injustice had been done, but that the plaintiff had brought his troubles
on himself by refusing to answer in his lord's court or by expecting his
essoins to avail him too long. Moreover, the ownership of land was
decided in the feudal courts by the issue of the duel between two cham-
pions who were supposed to be ready to fight because they were witnesses
of the truth. It was difficult for the king to interfere in such pleas,
where the lord of the court was giving the best justice that feudal law
permitted. Hence it was that he allowed to the defendants in such suits
the regale beneficium of the Grand Assize. Dr Round has shewn that
the Grand Assize, the Assize of Windsor as it is sometimes called, was
probably issued in 1179. The tenant alone could avail himself of this
royal benefit. If he put himself on the Grand Assize, the case was
removed from the feudal court into the king's court, and judgment was
given in accordance with the verdict of twelve knights of the shire chosen
by four knights summoned by the sheriff' for the purpose. The question
of the truth of the case, whether this man or that has the greater right,
was put to the jury. That the king's barons were conscious of the
shortcomings of feudal procedure is evident from the fact that the
Grand Assize was issued by the king with the advice of his barons,
consilio procerum.
Although the king was always regarded as the fountain of justice, his
duty was rather to see that justice was done than to do it himself. It is
E. g. P. R. O, Ancient Deeds, B. 11342. “S. Rex Angl Waltero filio Gisleberti
et preposito suo de Mealdona salutem. Si canonici Sancti Martini Lond' poterint
monstrare quod Oswardus de Meldona iniuste et sine iudicio illos dissaisierit de
terra sua de Meldon'de burgagio tunc precipio quod faciatis illos resaisiri sicut
saisiti fuerunt die qua rex Henricus fuit vivus et mortuus. . . Et nisi feceritis Ricardus
de Luci et vicecomes de Essexa faciant fieri ne audiam inde clamorem pro penuria
recti. ” I owe this reference to Mr Lionel Landon.
1
CH. XVII.
## p. 588 (#634) ############################################
588
Procedure
evident from Glanville's words that some suits were felt to be rightly
brought in the first instance into the royal court, and that the king
could if he wished order that others should come to it too. The dis-
putes of tenants-in-chief for land held in chief of the king came naturally
into the king's court. The writ that brought suits directly to the royal
court was the writ Precipe, so called from its first word. It was addressed
to the sheriff, and told him to command the defendant to restore to
the plaintiff the land or other property of which he had deforced him
or to be before the king or his justices on such a day. Although Glan-
ville
says that the king may if he wishes issue this writ, it is clear that
he felt that suits touching the ownership of land held by sub-tenants
ought not to be begun in the king's court where the lord's court was
ready to do justice to the plaintiff. The aim of king and barons alike
in the legal reforms of the reign was to secure quicker justice and thus
maintain better order in the land. It was not the mere bringing of suits
to the king's court that secured speedy justice, it was the employment
of further expedients to secure quicker action, expedients which the king
alone could sell. The plea which settled a man's right to the owner-
ship of land was of necessity long in whatever court it was heard.
As in the feudal courts, so in the king's court, cases concerning the
ownership of land were decided in accordance with the issue of the duel,
unless the defendant put himself on the Grand Assize. The law of essoins
ruled in every court alike. Although Glanville says in praise of the Grand
Assize that it did not admit of so many essoins, and therefore allowed an
earlier decision, it was sufficiently tedious in fact; to carry through a suit
for the ownership of land might take many years. The case of Richard of
Anesty is always quoted to prove the delay in law-suits in the Angevin
period. But Richard's sorrows, though great, have been given undue pro-
minence. His case fell early in Henry's reign; he began it before the
Toulouse expedition, and it involved the papal as well as the royal court.
In every way it was exceptional. The time taken by the ordinary suit
in the king's court at the end of Henry's reign can best be judged by the
records of proceedings in the reigns of his sons. But the gaps in the
series of extant rolls make difficult the tracing of suits. There are few
parallels to the statement in a roll of 1194 that Simon Grim has fol-
lowed the same suit “for seven years in divers courts. "
In addition to the fact that many years might elapse before the
question of the ownership of land was settled by the judgment of a
court, the plaintiff in a plea of right was in an unfavourable position.
The defendant had the choice of procedure, the duel or the Grand Assize.
The defendant also had the land. Men, sure of the fact that they had
been unjustly evicted from their land, or prevented from entering into
their inheritance, could afford to forgo the security which a judgment in
their favour in a writ of right would give. They could well be content
1 Rotuli Curiae Regis, 1, p. 68.
ביי
## p. 589 (#635) ############################################
The Possessory Assizes and Final Concords
589
with a speedy judgment by which they could be put in immediate pos-
session, in seisin, of their land. Hence it was that, when Henry passed
from making compulsory inquiries into unjust and extra-judicial dis-
seisins to allowing the purchase of writs which ordered the summons of a
jury to answer definite questions with regard to the seisin of land, he
found people ready to take advantage of his devices. The jury sum-
moned by the writ of Novel Disseisin answered the definite question:
Has the plaintiff been disseised unjustly and without judgment within
the period covered by the assize? The writ of Mort d’Ancestor ordered
the summons of a jury to answer the questions: Was the ancestor of the
plaintiff seised of the land at issue on the day he died? Did he die
within the period covered by the assize? Is the plaintiff his next heir?
A third recognition, known as Darrein Presentment, was devised probably
about the year 1179. Advowsons were a fertile source of litigation, and 1
a new parson could not be appointed to a church the advowson of which
was in dispute. The Lateran Council of 1179 required the diocesan
bishop to fill the vacancy if the patron delayed too long in making his
presentation. The writ of Darrein Presentment ordered the summons of
a jury to inquire who presented the last parson to a vacant church in time
of peace, and it was adjudged that he or his heir should present again.
The three recognitions begun by these writs became in a few years
extremely popular. They were speedy, for few essoins were allowed.
Few indeed were necessary, for a favourable judgment under one of
these assizes gave the winner no right of ownership in the disputed land
or advowson; the loser could still bring the writ of right in his lord's
court. Barons used the new procedure, which was meant as much for
them as for the humble freeman. It is customary to speak of these devices
as though they were directly aimed against the barons and their courts.
But to say that Henry deliberately set out to protect possession or seisin
in order to deprive the baronial courts of their jurisdiction is completely
to misunderstand the conditions of the time. The curtailment of suits
was as much to the advantage of barons as to that of other men. It was
also to the general good that men should not be tempted to self-help
by the law's delays. Moreover, such was the love of litigation at this
time that it is doubtful if the new recognitions made very much difference
to the volume of business in the feudal courts.
The Leges Henrici Primi shew that in the reign of Henry I a court
of justice was regarded as a place where men might either be brought
together in love or separated in judgment. It was as much the duty of
the judge to end litigation by arranging an agreement as by delivering
a judgment. The famous pleas of the early years of Henry II were often
ended by a compromise. In the course of the reign, the idea of embody-
ing the agreement so arranged in the form of a chirograph, an indenture,
was elaborated by the development of a definite formula for the record
of the convention. Written twice, head to head, on one piece of parch-
CH. XVII.
## p. 590 (#636) ############################################
590
The Carta of 1166
ment, the text recorded the place and date of the agreement and the
judges before whom it was made. It then proceeded to recite the terms
of the agreement. The authenticity of the text was guaranteed by the
device of severing the parchment through the word CYROGRAPHUM
written between the two copies. Originally devised with the object of
curtailing and preventing litigation, the final concord came to be regarded
as the ideal way of making an agreement touching ownership; for the
king's court would enforce its observance. It soon became worth men's
while to bring a fictitious action as the formal preliminary to a pre-
arranged agreement, in order to enjoy the security given by a final
concord made before the king's justices. The final concord had before
it a longer history than either Henry or Glanville can have foreseen.
The year 1166, in addition to being a turning point in legal history,
has been claimed as marking a revolution in financial organisation. In
that year the policy which ultimately assimilated towns to the royal
demesne, and made them with it subject to aids or tallages assessed by
royal justices, was definitely entered upon. Also in that year Henry
required his tenants-in-chief to send him a sealed return, informing him
how they had arranged the details of their knight-service. He did not
ask the amount of the knight-service that they owed, the servicium
debitum. He asked how many knights had been enfeoffed before the
death of Henry I, and how many since, and how many, if any, remained
to be provided for by the tenant-in-chief himself. He asked, in fact,
how many knights were of the old enfeoffment, how many of the new,
and how many “in demesne"; the names of the knights enfeoffed had
also to be returned. The object of this enquiry has generally been
regarded as financial. Dr Round has pointed out that after 1166 tenants-
in-chief paid on their servicium debitum only in those cases where they
had enfeoffed fewer knights than the amount of the knight-service that
they owed the king. Where for any reason the tenant-in-chief had
enfeoffed more knights than his actual service required, he paid after
1166 on the number of knights that he had actually enfeoffed and not
on his servicium debitum. Dr Round has therefore argued that the object
of the returns was to secure “a new feudal assessment. ” That Henry did
in fact compel some of his tenants-in-chief to pay on more knights than
their old servicium debitum is certain, but there remained many cases in
which no difference in the assessment or in the amount paid was made? .
It is also highly probable that Henry's object in making the enquiry was
in part at least political, and that the Archbishop of York is accurate
in his statement that the king has asked the questions because he wishes
to know the names of the knights, in order that those who have not
done allegiance, and whose names are not written on the king's roll,
may do allegiance before a certain date.
It is on his achievement in setting English lawyers upon the paths
1 More research into this matter is needed.
## p. 591 (#637) ############################################
Conclusion
591
that they have trodden for seven hundred years, and are indeed treading
yet, that the fame of Henry II rests. He was the greatest and the richest
king in western Europe. One of his daughters married the King of Sicily,
another the Duke of Saxony, Henry the Lion. The latter marriage made
much history. But the triumph of his reign lay, not in his riches or
alliances, but in the fact that his contemporaries recognised in him the
greatest lawyer of his day. Kings came to him for judgment. If in his
enforcement of the forest laws Henry shewed himself not only ungenerous
but unjust, it was a matter of gratulation and wonder that the poor
could come to his court and win justice against the rich. The men about
his court were not mere judges and administrators, they included men of
letters. Henry was fortunate in his servants, but the court of those
days was what the king made it. Henry's greatness has always been
recognised, and much that was done by previous kings has been in the
past assigned to him. Of late years, justice has been done to the work
of his predecessors. It has been realised that Henry worked on founda-
tions already laid. But the foundations were slight-a few formulas,
the beginnings of an idea,
CH. XVII.
## p. 592 (#638) ############################################
592
CHAPTER XVIII.
FRANCE: LOUIS VI AND LOUIS VII
(1108-1180).
The history of France throughout the reigns of Louis VI (1108–1137)
and Louis VII (1137–1180) is completely dominated by two apparently
contradictory factors. We see on the one hand the persistent extension
of the Anglo-Norman domain, which, from the day that it passed into
the hands of the Counts of Anjou, gradually increased until it included
more than half of France; while on the other hand it is obvious that the
king's power was daily becoming more firmly established, daily gaining
as much in strength as it lost in extent through the growing predominance
of Normandy and Anjou. Philip I's two immediate successors concentrated
nearly all their energies, though not with equal zeal, upon a twofold task:
to oppose the English monarch's invasion of the kingdom, and to
recover authority over all the territory that was normally subject to the
Crown.
The most urgent matter was to secure obedience from the barons of
the royal domain, whose turbulence and insubordination threatened to
make the sovereign's authority of no effect, even in the Isle de France.
This was the task to which Louis VI especially applied himself. Even in
his father's lifetime, as we have seen', he had attacked the problem with
energy.
No work could have better suited this vigorous soldier-king, in whom
courage was carried to the point of temerity. In person he was tall and
strong, with a tendency to corpulence that earned him the nickname of
le Gros, and, to his great sorrow, began to unfit him for the rough pro-
fession of arms when he was no more than forty years of age. A large
eater, and a lover of freedom and gaiety, he was at the same time honest
and upright, cheery and easy of approach; and his contemporaries charge
him with but one serious failing, that of cupidity. All are agreed in
praising the rare energy and valour of which the record of his actions is
sufficient evidence.
Of the first years of his reign, indeed, hardly one passed that did not
see him actively employed in fighting and chastising his turbulent vassals.
The massive castles by means of which they dominated the highways had
1 Supra, Vol. 11, Chap. v.
## p. 593 (#639) ############################################
Anarchy in the royal domain
593
become mere dens of brigands, and the terror that they inspired is
described in vivid terms by the chroniclers of the day. A traveller from
Paris to Orleans, for instance, was threatened at every step by some fresh
danger. Whether he were minded to follow the highroad, or to avoid it
in the hope of escaping “ the ravening wolves,” the lord of some castle
would be lying in wait to fall upon him and rob him. The owners of the
fortresses of Montlhery, Châteaufort, La Ferté-Alais, and Le Puiset were
masters of this part of the country, and had reduced it to such a “chaos
of confusion,” says one of the chroniclers, "that it was unsafe to venture
upon the road without either obtaining their consent or securing a con-
siderable escort. ” If a man were bound for Melun he found his way
barred by the fortress of Corbeil; if for Mantes, Dreux, or Chartres, he
was forced to reckon at least with the castles of Chevreuse, Épernon,
Rochefort, Gometz, Montfort-l'Amauri, Montchauvet, Houdan, and
Maule.
Everywhere the barons, safeguarded by their fortresses, perpetrated
the same excesses: these usually consisted, not only in robbing merchants
and pilgrims, but also in fleecing the peasants, in seizing their wine, corn,
and cattle, and in pillaging the property of the neighbouring churches
and abbeys, invading the abbeys themselves, and making imperious
demands for food and shelter for all their suite. It was these last mis-
doings that drew down upon them, not unnaturally, the worst impre-
cations of the writers of their day, who were nearly all clerics. There
were certain barons who went even further than the rest, and took
pleasure in posing as veritable dilettanti, so to speak, in the arts of
brigandage and cruelty. The most famous example of this type was the
son of Enguerrand of Coucy, that Thomas of Marle of whom a con-
temporary chronicler, Guibert, Abbot of the neighbouring monastery of
Nogent, has given us an imperishable portrait.
After a youth spent in debauchery, and in robbing unfortunate
pilgrims bound for the Holy Land, Thomas had come to take a positive
delight in murder. His cruelty, says the worthy Guibert of Nogent, “so
far exceeded previous experience that men who were notoriously cruel
killed cattle, apparently, with more regret than he shewed in slaying men. "
He slaughtered without cause for the sheer pleasure of it; and he ex-
hibited great ingenuity in devising horrible deaths for his victims. Some-
times, it was said, he would hang a man by his thumbs or some other part of
the body, and shower blows upon him till he died. Guibert of Nogent
declares that he was present one day when Thomas of Marle had the eyes
of ten of his victims torn out, with the result that they immediately
expired. On another occasion he asked a peasant who had angered him
why he did not walk faster, and on the man answering that he was
unable to do so—“Wait a moment," cried Thomas; “I'll make you bestir
yourself! ” and leaping from his horse he drew his sword and cut off both
the peasant's feet at a single blow. The poor wretch died; and Guibert,
C. MED, H, VOL. V, CH. XVIII.
38
## p. 594 (#640) ############################################
594
Struggle of Louis VI with the lesser barons
9
who tells the story, adds: “No one can imagine the number of those
who perished in his dungeons, from starvation, from torture, from
filth.
Fortunately, not all the petty barons by whom the king was confronted
were fashioned after this pattern; but the evil was deeply rooted every-
where, and it was necessary for Louis VI to complete without delay the
purge which he had begun even in his father's lifetime. The two seigneurs
who gave him the most trouble were this very Thomas of Marle whom
we have just described, and Hugh, lord of Le Puiset. The latter,
though not so perverted as Thomas, was the terror of the country round
Chartres, which he ravaged, pillaged, and devastated with fire, with-
out intermission and without mercy. In March 1111, when Louis VI was
holding his court at Melun, the charges brought against this brigand were
particularly vehement and urgent. To the complaints of Theobald, Count
of Chartres, were added those of the Archbishop of Sens, the Bishops of
Chartres and Orleans, the abbots of such monasteries as were especially
open to attack, and many canons and priests, all of whom besought the
king to rid them of this “rapacious wolf,” to “ tear from the monster's
jaws” their property, the fertile fields of Beauce that he “was devouring. ”
On being summoned to the king's presence to answer for his depredations,
Hugh, not unnaturally, evaded the summons. He was promptly
declared to have forfeited his fief by this refusal to appear, and Louis VI,
after calling upon the rebel to surrender, gathered an army and, supported
by the Count of Chartres, laid siege to the castle of Le Puiset. It was
only after a fierce struggle that he succeeded in reducing it. Hugh was
taken prisoner, and the castle was burnt and razed to the ground.
But Hugh was one of those men whom misfortunes only exasperate.
Howden, 11, 215. Maitland's doubt as to Glanville's authorship of the treatise rests
on an unusual translation of the verb condo. The normal translation of condo in
this context would be to write down or compile. A comparison of the treatise with
the surviving judicial records of the early thirteenth century shews that it is the
work of a practised judge.
2 Cf. supra p. 573, note.
CH. XVII.
37-2
## p. 580 (#626) ############################################
580
The Sheriffs
king. Manasser Biset the steward, Warin Fitz Gerald the chamberlain,
Richard de Humez the constable, were his constant companions. Until
his disgrace, Henry of Essex, as constable, was constantly attendant on the
king. Unlike his fellows of the household, he was of baronial rank. His
forfeited honour was given by the king to Henry Fitz Gerald, brother
of Warin, and like him a chamberlain. In the later years of the reign, the
personnel of the court was more varied; judges, and other men who served
the king without definite office, appear beside the regular household
officials. Much research remains to be done upon the curiales of Henry II.
That he reposed great confidence in them is certain. He rewarded them
with land, but not lavishly, though some of them have left their names
to English villages: Manasser Biset is immortalised in the name of Preston
Bisset in Buckinghamshire. Before the end of the reign there are definite
traces of the organisation which was to develop into the wardrobe of the
thirteenth century. The names of many chamber-clerks appear on twelfth-
century Pipe Rolls. They were already employed in administrative work
as well as in purely household functions. It is only from the examination of
unprinted documents that more can be learned of their origin and status.
If the men in the king's immediate service are as a body obscure, his
sheriffs are all known by name, and their territorial position can often
be ascertained precisely. The office still gives a field for research, but it
is certain that during the reigns of Henry II and his sons the sheriff
took the first and all-important steps towards his present position of
forgotten dignity. The Norman kings had suffered from the over-mighty
sheriff, and had tried to check his power. Henry I had often put his
own curiales into sheriffdoms and united several counties in the hands
of one or two trusted ministers. But the lists of sheriffs in Henry II's
early years still shew baronial names. In Devonshire, the earl was sheriff
until 1157. Northumberland was held by William de Vesci from 1157
to 1170, and by Roger de Stuteville from 1170 to 1185. William de
Beauchamp was sheriff of Worcestershire from 1155 to 1169, of Glou-
cestershire from 1157 to 1163, and of Herefordshire from 1160 to
1169. Wiltshire was held by Patrick, Earl of Salisbury, from 1155 to
1160. Throughout the reign, Shropshire was held by local magnates.
A baron was not inevitably the king's opponent, and a baronial sheriff
may have been as good an officer as any curialis. Moreover, many
sheriffs of baronial rank held their offices because they had become
curiales, and were competing for the prizes which the king's service
offered. Ranulf de Glanville was the chief among many such men.
Many of Henry's sheriffs were undistinguished knights in the counties
they held. Adam de Catmere, sheriff of Berkshire from 1160 to 1170,
and of Oxfordshire from 1164 to 1170, held half a knight's fee at Cat-
more in Berkshire of William, Earl of Derby. The south Lincolnshire
knight, Alfred of Pointon, sheriff of Lincolnshire in 1166 and 1167, and
again from 1170 to 1174, held three knight's fees of Maurice de Craon,
.
## p. 581 (#627) ############################################
The Sheriff's work
581
and was his steward. Even at the beginning of the reign, some shires
were held by curiales. The important county of Hampshire was held
by a succession of them. Turstin, sheriff until 1160, had been the clerk
of a chamberlain in the reign of Henry 11. His son succeeded him, and
was followed from 1170 to 1179 by Hugh de Gundeville. From 1174
to 1177 Hugh was also sheriff of Northamptonshire, from 1177 to 1179
he was sheriff of Devon, and his name frequently occurs in lists of
Henry's judges. From 1155 to 1160 Northamptonshire was held by
another minister who often served as judge, Simon son of Peter of Brix-
worth in that county. By the end of the reign it was the rule rather
than the exception that the sheriffs should be ministeriales. The change
was probably the result of Henry's policy rather than the policy itself.
Henry was controlling the excesses of sheriffs, and at the same time
increasing their work, so that barons may have become less anxious to
hold the office. The large sums offered, though not always paid, for
shrievalties at the beginning of Richard's reign may suggest that the
buyers hoped for laxer administrative control under a new king-a hope
that was not realised.
The judicial reforms introduced by Henry II materially increased the
labours of the sheriff. In addition to the financial and military responsi-
bilities which had lain upon him in the Norman time, he was now required
to give effect to an elaborate system of centralised justice. The earliest
rolls of the itinerant justices reveal the unceasing labours of the sheriff
in the time of Henry's sons. He was responsible for the most minute
details of judicial administration; he must receive and produce the writs
which began the innumerable pleas resulting from Henry's legal re-
forms; he was responsible for summoning every person necessary for the
conduct of a plea; he had to give effect to the justices' decisions, and
keep a record of his action; he must answer for the most meagre chattels
of criminals that had fallen in to the king. Any failure in the perform-
ance of these duties meant that he would be called to account before the
justices. It is not remarkable that curiales appear in increasing numbers
among the sheriffs of Henry's later years. Unless the sheriffs were brought
into close relations with the king, his plan of a judicial organisation
extending over the whole land and centring upon his court was bound to
be fruitless.
In 1170 Henry sent bodies of commissioners or justices round the
country to inquire touching the behaviour of the sheriffs, their bailiffs,
and all who were doing the king's business in the shires. Generally
known as the “Inquest of Sheriffs," the inquiry had a much wider scope.
)
It entered into the financial relationship between lords and their men,
with which the king had normally no concern. It covered only the
four years of Henry's recent absence abroad. Two fragments of the
original returns have survived, relating respectively to East Anglia and
1 Round, The Rise of the Pophams, in The Ancestor, vii, 59.
CH. XVII.
## p. 582 (#628) ############################################
582
The Inquest of Sheriff's
the borough of Worcester. The East Anglian fragment relates almost
exclusively to the payments made to the Earl of Arundel and other barons
by the men on their own land and on land held in custody. Payments
were made to the earl to help him in his work on the Marches of Wales,
in his expedition to France, in his difficulties with the Jews, in his con-
tribution to the aid for marrying the king's daughter, and in his journey
to Saxony with her. The Worcester fragment, on the other hand, deals
almost entirely with payments to the sheriff. It shews that the sheriff,
William de Beauchamp, took from the borough forty-two pounds in the
first two years in question, and fifty pounds in the last two years. The
farm of the borough was fixed at twenty-four pounds when, at a later
time, the burgesses were allowed to pay it direct into the Exchequer.
The burgesses also made payments to him for the conveyance of treasure
and prisoners, and on the occasion of his daughter's marriage. William
de Beauchamp was one of the sheriffs removed before the inquiry was
made, and many others were removed afterwards. Only in Cumberland,
Devon, Kent, Rutland, Staffordshire, Surrey, and Wiltshire, was the
custody of the shire in the same hand for any appreciable period before
and after 1170. Of these counties, Rutland was held by the king's
constable, Richard de Humez, and Surrey and Kent were in the custody
of Gervase of Cornhill, a member of a family which owed its wealth to
London trade and had entered the king's service. It is evident from the
fact of the enquiry that the king did not intend the government of the
shires through sheriffs and other officers to rest on exploitation. No
other enquiry was made in this reign with the principal object of dis-
covering the abuses in local government, but, when the king's justices
went round the country, people had the opportunity, if they dared to use
it, of expressing their grievances. On the Lincoln Assize Roll of 1202
occurs an entry to the effect that certain sums of money have been taken
from merchants to the use of the sheriff, his bailiff, and his bailiff's clerk,
for the right of leading corn from county to county through England.
It must have been possible for the sheriff to make considerable profits
in a legitimate way. The amounts of his profits from the local courts of
justice must have depended on the justice he gave, and a period of peace
and careful management meant that the value of the royal land farmed
by the sheriff increased considerably. That Henry II had no intention
of allowing the sheriff to obtain the whole of this increment is shewn by
the fact that he had to account for variable amounts, known later as
incrementa, apart from and in addition to his farm. Even so, the sheriff
must have made money on his farm. The incrementa were unpopular
alike with the sheriffs and the people, and the first issue of Magna Carta
declared that counties should be at their old farms, without any incre-
ment, a clause that, for obvious financial reasons, it was impossible to
retain. When lands escheated to the king, they were generally farmed
by the sheriff or by some magnate or curialis who was recompensed for
## p. 583 (#629) ############################################
The Sheriff's aid
583
his trouble by the amount he raised beyond the sum for which he farmed
the escheat. But sometimes escheated lands were held in custodia, that
is, the holder strictly accounted for them to the king. Like that of his
father, the reign of Richard I was a time of administrative reform. The
large amount of land that came in to the king in 1194, mainly as a
result of his brother's rebellion, necessitated fresh arrangements. Two
escheators were appointed, William de Sanctae Mariae Ecclesia, and
Hugh Bardolf, who held the escheats in custody, and rendered detailed
accounts for them. William held the escheated lands in the southern
and Hugh in the northern part of England. It was doubtless experi-
ments like this, compelled by the pressure of increasing business, which
suggested the practice, developed in the next century, of sometimes
letting shires themselves to their sheriffs in custodia instead of ad firmam.
In addition to profits of uncertain amount and diverse origin, the
sheriff was entitled to a customary payment from the men of the shire,
known as the sheriff's aid. This payment enters into general history as
one of the causes of dispute between Henry II and Becket in 1163. The
king is said to have wished to annex the money given to the sheriffs to
his own revenues. It is probable that he intended the sheriffs to account
at the Exchequer for the sheriff's aid as for the money which they col-
lected on the king's behalf. The significance of his proposals can only
be conjectured, for they were abandoned in face of the archbishop's
protest. That Henry wished to take possession of the sheriff's aid with-
out compensation to the sheriffs for its loss is highly improbable; he
depended too much on his sheriffs to alienate them by an arbitrary
measure of confiscation. He may well have been feeling his way towards
an increased centralisation of local government, and wished, as a step
towards this end, to appropriate the ancient sheriff's aid and compensate
the sheriff's by a payment direct from the treasury. It is also probable
that his proposals were suggested by the close resemblance between the
sheriff's aid and the Danegeld. The sheriff's aid was a geld, a tax laid upon
land according to the assessment which determined the incidence of the
Danegeld; it descended from the fiscal system of King Edward's day.
Various passages in private charters shew that it was paid four times a year.
A Lincolnshire charter of the reign of Henry II refers to it as the “four
aids of the sheriff,” a Leicestershire charter as the “four gelds of the
shire. " It was natural that Henry should wish the sheriff's aid to follow
the other ancient gelds into his treasury. Had it done so, its amount
and incidence would be less obscure at the present day. In the reign of
Edward I, the sheriff's aid in the counties of Cambridge and Huntingdon
seems to have brought in approximately thirty pounds a year. It was not
an adequate recompense for the sheriff's manifold labours, but the
income which it brought him was not negligible.
Stenton, Danelaw Charters, p. 127. Haverholme Cartulary, Lincs. Notes and
Queries, Vol. xvii, p. 48.
1 יי
1
CH. XVII.
## p. 584 (#630) ############################################
584
Local justiciars
t
Even under the Norman kings, the sheriffs had not been the sole
dispensers of royal justice in the shires. Apart from the sporadic ap-
pearance of royal officials sent round the country to do justice, there is
evidence that already in the reign of William II local officers known as
justiciars were in existence. The local justiciarship can be traced through
the reigns of Henry I and Stephen, but it is not generally realised that
the office still existed in the reign of Henry II. In writs of Henry II,
few of which have yet been printed, there are definite references to the
justiciars of Lincoln', Norfolk”, Warwick*, Sussex`, York, and Notting-
ham'. It is probably to these officers that William of Newburgh refers
when he states, under the year 1154, that Henry “appointed in all the
districts of his kingdom ministers of right and law, to coerce the bold-
ness of the wicked, and do justice to those seeking it, according to the
merits of the cases. ” The relation of the local justiciar to the sheriff
and the shire-court is uncertain, but it is certain that he took precedence
of the sheriff in the shire.
The little that is known of these local justiciars suggests that Henry
did not long continue the practice of appointing them. In matters of
justice, he seems in his earliest years to have adopted his grandfather's
expedients, both employing local justices and sending out officers of his
court to do justice over a great stretch of the country. The year 1166
may be regarded as a turning-point. The Assize of Clarendon, issued in
that year, opens a new phase in the history of criminal jurisdiction in
England. The king then commanded that twelve lawful men of every
hundred and four lawful men of every village should declare on oath if any
in their hundred or village had been accused or suspected of being a robber,
murderer, or brigand, or a harbourer of such, since Henry became king.
The presentments of these jurors were to be taken before the sheriffs
and again before the justices. Those who were apprehended by reason
of such presentment were to have judgment before the king's justices
only, they were to go to the ordeal by water, and the chattels of the
guilty were to go to the king. Men of ill repute proved innocent by the
water were nevertheless to abjure the realm. Gaols were to be built in
counties where there were none, for the custody of prisoners awaiting the
coming of the justices. In the case of those apprehended in any other
way than through presentment, the procedure was to remain “as it was
and ought to be," a provision which allowed the sheriff' to deal with
crimes other than those specified, and with many minor offences, such
as petty assaults. This measure was a long stride towards centralisa-
tion. Ten years later, the Assize of Northampton, reinforcing that of
1 B. M. Harl. MSS. 742 f. 265. Cott. Vesp. E. xvi. f. 19b.
2 B. M. Cott. Galba E. 11 f. 31 d and 33d. Cott. Claud. D. xiu f. 41.
3 P. R. O. Exchequer K. R. Misc. Bks. 22 f. cxxv.
4 B. M. Cott. Faustina A. II f. 74b.
6 B. M. Cott. Vesp. E. xix f. 7.
## p. 585 (#631) ############################################
Judicial experiments
585
Clarendon, gave to the justices cognisance of other grave crimes which
had lain outside the scope of the earlier assize. For the first time in
English history, criminal justice was to be administered all over the
land in accordance with the same rules.
The years between 1166 and 1180 were years of experiment in the
centralisation of justice. The Assize of Clarendon was enforced by Earl
Geoffrey de Mandeville and Richard de Luci. The justiciarii or barones
errantes who conducted the Inquest of Sheriffs were large companies of
barons and clergy. But the judges who from 1168 onwards were doing
justice and assessing tallages in the shires were household and Exchequer
officials of the king. The Assize of Northampton of 1176 was put into
operation by six groups of three justices, whose work was made heavy
by the disturbance of the rebellion. When the king returned from
Normandy in 1178, he recalled the eighteen judges, and appointed five,
who were not to depart from his court but were to remain there to hear
complaints, so that if any matters needed special consideration they
could be determined by the king with the advice of his counsellors. This
provision originated no new court; it was an arrangement by which the
king, exercising his ancient prerogative of justice, might inspect the work
of his judges. He spent his time in England going from place to place,
and the five judges doubtless travelled with him. Richard de Luci retired
from the justiciarship in the next year, and Henry did not immediately
appoint a new Chief Justiciar. He divided the country into four districts
for the purpose of judicial administration. Ranulf de Glanville and
five other judges were placed in charge of the north; the three southern
districts were each put in charge of a bishop, who was also a curialis. In
1180 Glanville became Chief Justiciar. From that time, justices visited
the shires in almost every year. They inspected the local administration,
inquired into the king's rights, and assessed taxes; justice was only a
part of their work. These justices were intimately connected with the
Exchequer. It was thence they set out, and they returned there to hand
in their rolls; so the fact that the Exchequer was at Westminster
meant that Westminster became the centre of the judicial system. There,
judges sat almost continuously, for the Exchequer officials were the
judges.
The justices de banco are the justices of the bench at West-
minster. They did not form a different court from that of the justices on
eyre; there was but one court, and that the king's. The distinction
between the judges who sat at Westminster and those who went round
the country was narrow. The justices on eyre were governed by the
terms of a commission; those who sat at Westminster sat there pri-
marily to deal with pleas brought up by people who wished for the best
available opinion on their suits, and with pleas transferred from the
justices itinerant in the country.
The procedure described in Glanville's treatise is that of the end of
Henry's reign, when the king's judges appeared constantly in the shires,
CH. XVII.
## p. 586 (#632) ############################################
586
Centralisation of justice
and when his court was within the reach of every free man deprived
unjustly of his land. Of the means by which Henry brought about this
result all too little is known. The king could not force men to seek his
court for civil litigation; he could only attract them to it by giving
better justice than the courts of honours and manors, shires and hundreds.
No one doubted that it belonged to the king, if he chose, to see that
justice was done to those who sought it; appeal to the king was always
possible. The work of Henry II in centralising justice in the king's
court must not be overrated. The writs of Henry I suggest that the
rule of law, familiar to readers of Glanville, that no one need answer for
his free tenement in his lord's court without the king's writ or that of
his justiciar, may have been already established before 1135. Glanville
speaks of it as according to the customs of the kingdom, not as though
it were a recent enactment. The writ of right may well have been known
by that name before Henry became king; Conan, Earl of Richmond,
refers to it by name in a charter which must be earlier than 1158'. The
procedure by which a plea was removed from the feudal court to the
shire-court on the plaintiff proving in his lord's court before the sheriff
that his lord had failed to do justice was probably the same as that
described by Glanville, even in the first half of the century. The king
could always send his justices into the shire-courts to hear the suits in
process there. But the first condition to be fulfilled before the king
could take justice into his hand was the frequent appearance of royal
justices in the shires; only then would it be worth men's while to
appeal to the king.
With the advice of his barons, the king could always make general
statements of law. He could also send men round the country to inquire
into his rights by means of the sworn inquest. It is probable that Henry's
first step towards the centralisation of justice was to combine these pre-
rogatives. At or about the time of the Assize of Clarendon, he must
have declared that no man might be disseised unjustly and without
judgment of his free tenement, and commanded his justices to inquire
touching such disseisins within the period covered by the Assize. Ten
years later, in the Assize of Northampton, he made a general statement
that a man's heir should have such seisin as his ancestor had on the
day when he was alive and dead, and he commanded that, where the lord
of the fee had prevented this, the justices should inquire touching the
dead man's seisin and restore it to his heir. The justices were again
commanded to inquire into disseisins committed within the limit of time
covered by the Assize. These two enactments lie behind the procedure
begun by the writs of Novel Disseisin and Mort d'Ancestor, but they did
not immediately create those writs and that procedure. It appears as
though Henry at first made his benefits for a time compulsory that he
might make people realise their advantages before he put up definite
1 Harl. Chart. 48 G 41.
## p. 587 (#633) ############################################
The Grand Assize
587
writs and a definite procedure for sale. That the result of these enact-
ments was the taking of possession under the royal protection is true,
but it is certain that Henry and his justices did not set out deliberately
to protect. possession. Their aim was to quell the disorder of self-help,
and to provide a speedy remedy for the man unjustly dispossessed of his
tenement or prevented from entering into his inheritance. Writs of pre-
vious kings shew that here, too, he was working on foundations already
laid'. Henry II's genius lay in subtly devising a single means to fit the
many slightly varying circumstances.
It was not the partiality of feudal lords but the inadequacy of
feudal procedure that ultimately brought all free men into the king's
court. Feudal justice was slow. It was felt that a man must be present
in person to conduct his suit. Hence, there was developed a complicated
law of essoins, of excuses for non-attendance; an unwilling suitor could
prolong his plea almost indefinitely by making full use of his essoins.
When the justices of John's reign investigated complaints that a feudal
court had failed to do justice, the evidence often shewed, not that
injustice had been done, but that the plaintiff had brought his troubles
on himself by refusing to answer in his lord's court or by expecting his
essoins to avail him too long. Moreover, the ownership of land was
decided in the feudal courts by the issue of the duel between two cham-
pions who were supposed to be ready to fight because they were witnesses
of the truth. It was difficult for the king to interfere in such pleas,
where the lord of the court was giving the best justice that feudal law
permitted. Hence it was that he allowed to the defendants in such suits
the regale beneficium of the Grand Assize. Dr Round has shewn that
the Grand Assize, the Assize of Windsor as it is sometimes called, was
probably issued in 1179. The tenant alone could avail himself of this
royal benefit. If he put himself on the Grand Assize, the case was
removed from the feudal court into the king's court, and judgment was
given in accordance with the verdict of twelve knights of the shire chosen
by four knights summoned by the sheriff' for the purpose. The question
of the truth of the case, whether this man or that has the greater right,
was put to the jury. That the king's barons were conscious of the
shortcomings of feudal procedure is evident from the fact that the
Grand Assize was issued by the king with the advice of his barons,
consilio procerum.
Although the king was always regarded as the fountain of justice, his
duty was rather to see that justice was done than to do it himself. It is
E. g. P. R. O, Ancient Deeds, B. 11342. “S. Rex Angl Waltero filio Gisleberti
et preposito suo de Mealdona salutem. Si canonici Sancti Martini Lond' poterint
monstrare quod Oswardus de Meldona iniuste et sine iudicio illos dissaisierit de
terra sua de Meldon'de burgagio tunc precipio quod faciatis illos resaisiri sicut
saisiti fuerunt die qua rex Henricus fuit vivus et mortuus. . . Et nisi feceritis Ricardus
de Luci et vicecomes de Essexa faciant fieri ne audiam inde clamorem pro penuria
recti. ” I owe this reference to Mr Lionel Landon.
1
CH. XVII.
## p. 588 (#634) ############################################
588
Procedure
evident from Glanville's words that some suits were felt to be rightly
brought in the first instance into the royal court, and that the king
could if he wished order that others should come to it too. The dis-
putes of tenants-in-chief for land held in chief of the king came naturally
into the king's court. The writ that brought suits directly to the royal
court was the writ Precipe, so called from its first word. It was addressed
to the sheriff, and told him to command the defendant to restore to
the plaintiff the land or other property of which he had deforced him
or to be before the king or his justices on such a day. Although Glan-
ville
says that the king may if he wishes issue this writ, it is clear that
he felt that suits touching the ownership of land held by sub-tenants
ought not to be begun in the king's court where the lord's court was
ready to do justice to the plaintiff. The aim of king and barons alike
in the legal reforms of the reign was to secure quicker justice and thus
maintain better order in the land. It was not the mere bringing of suits
to the king's court that secured speedy justice, it was the employment
of further expedients to secure quicker action, expedients which the king
alone could sell. The plea which settled a man's right to the owner-
ship of land was of necessity long in whatever court it was heard.
As in the feudal courts, so in the king's court, cases concerning the
ownership of land were decided in accordance with the issue of the duel,
unless the defendant put himself on the Grand Assize. The law of essoins
ruled in every court alike. Although Glanville says in praise of the Grand
Assize that it did not admit of so many essoins, and therefore allowed an
earlier decision, it was sufficiently tedious in fact; to carry through a suit
for the ownership of land might take many years. The case of Richard of
Anesty is always quoted to prove the delay in law-suits in the Angevin
period. But Richard's sorrows, though great, have been given undue pro-
minence. His case fell early in Henry's reign; he began it before the
Toulouse expedition, and it involved the papal as well as the royal court.
In every way it was exceptional. The time taken by the ordinary suit
in the king's court at the end of Henry's reign can best be judged by the
records of proceedings in the reigns of his sons. But the gaps in the
series of extant rolls make difficult the tracing of suits. There are few
parallels to the statement in a roll of 1194 that Simon Grim has fol-
lowed the same suit “for seven years in divers courts. "
In addition to the fact that many years might elapse before the
question of the ownership of land was settled by the judgment of a
court, the plaintiff in a plea of right was in an unfavourable position.
The defendant had the choice of procedure, the duel or the Grand Assize.
The defendant also had the land. Men, sure of the fact that they had
been unjustly evicted from their land, or prevented from entering into
their inheritance, could afford to forgo the security which a judgment in
their favour in a writ of right would give. They could well be content
1 Rotuli Curiae Regis, 1, p. 68.
ביי
## p. 589 (#635) ############################################
The Possessory Assizes and Final Concords
589
with a speedy judgment by which they could be put in immediate pos-
session, in seisin, of their land. Hence it was that, when Henry passed
from making compulsory inquiries into unjust and extra-judicial dis-
seisins to allowing the purchase of writs which ordered the summons of a
jury to answer definite questions with regard to the seisin of land, he
found people ready to take advantage of his devices. The jury sum-
moned by the writ of Novel Disseisin answered the definite question:
Has the plaintiff been disseised unjustly and without judgment within
the period covered by the assize? The writ of Mort d’Ancestor ordered
the summons of a jury to answer the questions: Was the ancestor of the
plaintiff seised of the land at issue on the day he died? Did he die
within the period covered by the assize? Is the plaintiff his next heir?
A third recognition, known as Darrein Presentment, was devised probably
about the year 1179. Advowsons were a fertile source of litigation, and 1
a new parson could not be appointed to a church the advowson of which
was in dispute. The Lateran Council of 1179 required the diocesan
bishop to fill the vacancy if the patron delayed too long in making his
presentation. The writ of Darrein Presentment ordered the summons of
a jury to inquire who presented the last parson to a vacant church in time
of peace, and it was adjudged that he or his heir should present again.
The three recognitions begun by these writs became in a few years
extremely popular. They were speedy, for few essoins were allowed.
Few indeed were necessary, for a favourable judgment under one of
these assizes gave the winner no right of ownership in the disputed land
or advowson; the loser could still bring the writ of right in his lord's
court. Barons used the new procedure, which was meant as much for
them as for the humble freeman. It is customary to speak of these devices
as though they were directly aimed against the barons and their courts.
But to say that Henry deliberately set out to protect possession or seisin
in order to deprive the baronial courts of their jurisdiction is completely
to misunderstand the conditions of the time. The curtailment of suits
was as much to the advantage of barons as to that of other men. It was
also to the general good that men should not be tempted to self-help
by the law's delays. Moreover, such was the love of litigation at this
time that it is doubtful if the new recognitions made very much difference
to the volume of business in the feudal courts.
The Leges Henrici Primi shew that in the reign of Henry I a court
of justice was regarded as a place where men might either be brought
together in love or separated in judgment. It was as much the duty of
the judge to end litigation by arranging an agreement as by delivering
a judgment. The famous pleas of the early years of Henry II were often
ended by a compromise. In the course of the reign, the idea of embody-
ing the agreement so arranged in the form of a chirograph, an indenture,
was elaborated by the development of a definite formula for the record
of the convention. Written twice, head to head, on one piece of parch-
CH. XVII.
## p. 590 (#636) ############################################
590
The Carta of 1166
ment, the text recorded the place and date of the agreement and the
judges before whom it was made. It then proceeded to recite the terms
of the agreement. The authenticity of the text was guaranteed by the
device of severing the parchment through the word CYROGRAPHUM
written between the two copies. Originally devised with the object of
curtailing and preventing litigation, the final concord came to be regarded
as the ideal way of making an agreement touching ownership; for the
king's court would enforce its observance. It soon became worth men's
while to bring a fictitious action as the formal preliminary to a pre-
arranged agreement, in order to enjoy the security given by a final
concord made before the king's justices. The final concord had before
it a longer history than either Henry or Glanville can have foreseen.
The year 1166, in addition to being a turning point in legal history,
has been claimed as marking a revolution in financial organisation. In
that year the policy which ultimately assimilated towns to the royal
demesne, and made them with it subject to aids or tallages assessed by
royal justices, was definitely entered upon. Also in that year Henry
required his tenants-in-chief to send him a sealed return, informing him
how they had arranged the details of their knight-service. He did not
ask the amount of the knight-service that they owed, the servicium
debitum. He asked how many knights had been enfeoffed before the
death of Henry I, and how many since, and how many, if any, remained
to be provided for by the tenant-in-chief himself. He asked, in fact,
how many knights were of the old enfeoffment, how many of the new,
and how many “in demesne"; the names of the knights enfeoffed had
also to be returned. The object of this enquiry has generally been
regarded as financial. Dr Round has pointed out that after 1166 tenants-
in-chief paid on their servicium debitum only in those cases where they
had enfeoffed fewer knights than the amount of the knight-service that
they owed the king. Where for any reason the tenant-in-chief had
enfeoffed more knights than his actual service required, he paid after
1166 on the number of knights that he had actually enfeoffed and not
on his servicium debitum. Dr Round has therefore argued that the object
of the returns was to secure “a new feudal assessment. ” That Henry did
in fact compel some of his tenants-in-chief to pay on more knights than
their old servicium debitum is certain, but there remained many cases in
which no difference in the assessment or in the amount paid was made? .
It is also highly probable that Henry's object in making the enquiry was
in part at least political, and that the Archbishop of York is accurate
in his statement that the king has asked the questions because he wishes
to know the names of the knights, in order that those who have not
done allegiance, and whose names are not written on the king's roll,
may do allegiance before a certain date.
It is on his achievement in setting English lawyers upon the paths
1 More research into this matter is needed.
## p. 591 (#637) ############################################
Conclusion
591
that they have trodden for seven hundred years, and are indeed treading
yet, that the fame of Henry II rests. He was the greatest and the richest
king in western Europe. One of his daughters married the King of Sicily,
another the Duke of Saxony, Henry the Lion. The latter marriage made
much history. But the triumph of his reign lay, not in his riches or
alliances, but in the fact that his contemporaries recognised in him the
greatest lawyer of his day. Kings came to him for judgment. If in his
enforcement of the forest laws Henry shewed himself not only ungenerous
but unjust, it was a matter of gratulation and wonder that the poor
could come to his court and win justice against the rich. The men about
his court were not mere judges and administrators, they included men of
letters. Henry was fortunate in his servants, but the court of those
days was what the king made it. Henry's greatness has always been
recognised, and much that was done by previous kings has been in the
past assigned to him. Of late years, justice has been done to the work
of his predecessors. It has been realised that Henry worked on founda-
tions already laid. But the foundations were slight-a few formulas,
the beginnings of an idea,
CH. XVII.
## p. 592 (#638) ############################################
592
CHAPTER XVIII.
FRANCE: LOUIS VI AND LOUIS VII
(1108-1180).
The history of France throughout the reigns of Louis VI (1108–1137)
and Louis VII (1137–1180) is completely dominated by two apparently
contradictory factors. We see on the one hand the persistent extension
of the Anglo-Norman domain, which, from the day that it passed into
the hands of the Counts of Anjou, gradually increased until it included
more than half of France; while on the other hand it is obvious that the
king's power was daily becoming more firmly established, daily gaining
as much in strength as it lost in extent through the growing predominance
of Normandy and Anjou. Philip I's two immediate successors concentrated
nearly all their energies, though not with equal zeal, upon a twofold task:
to oppose the English monarch's invasion of the kingdom, and to
recover authority over all the territory that was normally subject to the
Crown.
The most urgent matter was to secure obedience from the barons of
the royal domain, whose turbulence and insubordination threatened to
make the sovereign's authority of no effect, even in the Isle de France.
This was the task to which Louis VI especially applied himself. Even in
his father's lifetime, as we have seen', he had attacked the problem with
energy.
No work could have better suited this vigorous soldier-king, in whom
courage was carried to the point of temerity. In person he was tall and
strong, with a tendency to corpulence that earned him the nickname of
le Gros, and, to his great sorrow, began to unfit him for the rough pro-
fession of arms when he was no more than forty years of age. A large
eater, and a lover of freedom and gaiety, he was at the same time honest
and upright, cheery and easy of approach; and his contemporaries charge
him with but one serious failing, that of cupidity. All are agreed in
praising the rare energy and valour of which the record of his actions is
sufficient evidence.
Of the first years of his reign, indeed, hardly one passed that did not
see him actively employed in fighting and chastising his turbulent vassals.
The massive castles by means of which they dominated the highways had
1 Supra, Vol. 11, Chap. v.
## p. 593 (#639) ############################################
Anarchy in the royal domain
593
become mere dens of brigands, and the terror that they inspired is
described in vivid terms by the chroniclers of the day. A traveller from
Paris to Orleans, for instance, was threatened at every step by some fresh
danger. Whether he were minded to follow the highroad, or to avoid it
in the hope of escaping “ the ravening wolves,” the lord of some castle
would be lying in wait to fall upon him and rob him. The owners of the
fortresses of Montlhery, Châteaufort, La Ferté-Alais, and Le Puiset were
masters of this part of the country, and had reduced it to such a “chaos
of confusion,” says one of the chroniclers, "that it was unsafe to venture
upon the road without either obtaining their consent or securing a con-
siderable escort. ” If a man were bound for Melun he found his way
barred by the fortress of Corbeil; if for Mantes, Dreux, or Chartres, he
was forced to reckon at least with the castles of Chevreuse, Épernon,
Rochefort, Gometz, Montfort-l'Amauri, Montchauvet, Houdan, and
Maule.
Everywhere the barons, safeguarded by their fortresses, perpetrated
the same excesses: these usually consisted, not only in robbing merchants
and pilgrims, but also in fleecing the peasants, in seizing their wine, corn,
and cattle, and in pillaging the property of the neighbouring churches
and abbeys, invading the abbeys themselves, and making imperious
demands for food and shelter for all their suite. It was these last mis-
doings that drew down upon them, not unnaturally, the worst impre-
cations of the writers of their day, who were nearly all clerics. There
were certain barons who went even further than the rest, and took
pleasure in posing as veritable dilettanti, so to speak, in the arts of
brigandage and cruelty. The most famous example of this type was the
son of Enguerrand of Coucy, that Thomas of Marle of whom a con-
temporary chronicler, Guibert, Abbot of the neighbouring monastery of
Nogent, has given us an imperishable portrait.
After a youth spent in debauchery, and in robbing unfortunate
pilgrims bound for the Holy Land, Thomas had come to take a positive
delight in murder. His cruelty, says the worthy Guibert of Nogent, “so
far exceeded previous experience that men who were notoriously cruel
killed cattle, apparently, with more regret than he shewed in slaying men. "
He slaughtered without cause for the sheer pleasure of it; and he ex-
hibited great ingenuity in devising horrible deaths for his victims. Some-
times, it was said, he would hang a man by his thumbs or some other part of
the body, and shower blows upon him till he died. Guibert of Nogent
declares that he was present one day when Thomas of Marle had the eyes
of ten of his victims torn out, with the result that they immediately
expired. On another occasion he asked a peasant who had angered him
why he did not walk faster, and on the man answering that he was
unable to do so—“Wait a moment," cried Thomas; “I'll make you bestir
yourself! ” and leaping from his horse he drew his sword and cut off both
the peasant's feet at a single blow. The poor wretch died; and Guibert,
C. MED, H, VOL. V, CH. XVIII.
38
## p. 594 (#640) ############################################
594
Struggle of Louis VI with the lesser barons
9
who tells the story, adds: “No one can imagine the number of those
who perished in his dungeons, from starvation, from torture, from
filth.
Fortunately, not all the petty barons by whom the king was confronted
were fashioned after this pattern; but the evil was deeply rooted every-
where, and it was necessary for Louis VI to complete without delay the
purge which he had begun even in his father's lifetime. The two seigneurs
who gave him the most trouble were this very Thomas of Marle whom
we have just described, and Hugh, lord of Le Puiset. The latter,
though not so perverted as Thomas, was the terror of the country round
Chartres, which he ravaged, pillaged, and devastated with fire, with-
out intermission and without mercy. In March 1111, when Louis VI was
holding his court at Melun, the charges brought against this brigand were
particularly vehement and urgent. To the complaints of Theobald, Count
of Chartres, were added those of the Archbishop of Sens, the Bishops of
Chartres and Orleans, the abbots of such monasteries as were especially
open to attack, and many canons and priests, all of whom besought the
king to rid them of this “rapacious wolf,” to “ tear from the monster's
jaws” their property, the fertile fields of Beauce that he “was devouring. ”
On being summoned to the king's presence to answer for his depredations,
Hugh, not unnaturally, evaded the summons. He was promptly
declared to have forfeited his fief by this refusal to appear, and Louis VI,
after calling upon the rebel to surrender, gathered an army and, supported
by the Count of Chartres, laid siege to the castle of Le Puiset. It was
only after a fierce struggle that he succeeded in reducing it. Hugh was
taken prisoner, and the castle was burnt and razed to the ground.
But Hugh was one of those men whom misfortunes only exasperate.
