in mediaeval history, for it shows a clear-cut issue upon which a saintly man of Anselm’s type would unhesitatingly decide that he had higher duties than those which he owed to the Crown. The Concordat of Worms of 1122 did not permanently end the dispute, which soon revived upon slightly different ground; indeed, in its most general sense the quarrel is likely to last as long as government itself. It has had important results upon the political theory of the State, some of the greatest minds of the middle ages having devoted their powers to the examination of the nature of kingship, the authority of law, and the limits which ought to be put upon the power of temporal rulers. Jurisprudence to-day bears the traces of these great events, in the course of which the State was criticised in terms of the highest ideal of government which then existed, that of the universal Church.1
HENRY I’s REFORMS
The rest of the reign is occupied with the peaceful activities of the Justiciar, Roger, Bishop of Salisbury, a Norman from Caen, who like so many of his race had something of the efficiency expert in his blood. Official tradition long respected him for his organisation of the Exchequer on strict business lines, and to him we owe the series of “Great Rolls of the Pipe”. The earliest in existence is dated 1130 and contains important legal as well as financial information. Some of the earlier rolls must be lost; but with a few gaps there is an almost complete series of Pipe Rolls from 1156 down to 1832—a remarkable sign of the permanence of Roger’s work. In this reign, therefore, we may place the elaboration of an efficient governmental organisation at Westminster. In local government Henry I was equally active; eleven untrustworthy sheriffs were dismissed in 1129; justiciars were sent on circuit to look after the pleas of the Crown (and they soon usurped for their master immense jurisdiction by asserting that any matter which concerned the King’s peace could be treated as a plea of the Crown), while it is clear that the Norman sheriffs were still administering in the county what was essentially Anglo-Saxon law, for we have some curious treatises (written between 1113 and 1118) which are attempts to state that old law in language that the Normans could understand.2 This in fact is the justification for the statement we have already made to the effect that the period of Anglo-Saxon law extended later than the Norman Conquest, and at least as late as the year 1100 or thereabouts. We therefore see that in the reign of Henry I the law was substantially Anglo-Saxon and administered by the sheriffs locally according to ancient custom (which was certainly not the same all over the country). As yet there was very little that could be called “common law”. So far there was only a great administrative machine well on the way towards a complete domination of the realm. From this great machine there will develop the future common law.1 Only in Sicily was such efficient administration to be found, and there too it was the work of Norman invaders.2
Henry’s death was a great loss to the nation:
“then there was tribulation soon in the land, for every man that could forthwith robbed another.... A good man he was and there was great awe of him. No man durst misdo against another in his time. He made peace for man and beast. Whoso bare his burden of gold and silver, no man durst say him aught but good.”3
The reign of King Stephen (1135-1154) is frequently called “the Anarchy”, so great were the disorders which filled it attendant upon the disputed title to the Crown. The machine which Henry I had perfected needed a firm hand to run it, and Stephen was content to let things drift. Art and letters, indeed, flourished, and Vacarius came to Oxford to teach Roman law and to write a less expensive text-book for poor English law students,4 but from the point of view of Norman efficiency the reign was disappointing: still,
“to those who do not place order above everything and who realise how oppressive Henry’s government was becoming in spite of its legality, it must always remain a moot question whether Stephen’s reign was such a total set-back as the ecclesiastical writers of the day would have us believe”.5
HENRY II’s EMPIRE
With his successor, Henry II, we come to one of the most critical epochs in the history of the common law. By inheritance or by marriage he had acquired the rulership of England, Normandy, Aquitaine and Anjou, and like many of his barons divided his time between England and the continent. This close connection with France was to have important results for English law as we shall see later. Whatever the lessons of Anglo-Norman public administration, the revival of learning now in progress may have brought broader views and more generous ideals. Stubbs has made the attractive suggestion that perhaps the rapid growth of the universities
“conduced to the maintenance in the educated class of an ideal of free government, drawn from ancient Greek and Roman history, which, although never likely to be realised in detail, tended to make tyranny such as that of William Rufus impossible.”1
It must never be forgotten that the general standard of learning and culture of a nation has a large part in determining its law and polity.
CONSTITUTIONS OF CLARENDON
The reign opens (1154) with the confirmation of Henry I’s Charter of 1100, and with the great conflict between the King and Archbishop Becket. The separation of the ecclesiastical courts by William the Conqueror had had unexpected results, for in the succeeding hundred years the Church had developed a large mass of canon law and claimed wide jurisdiction. This law Becket determined to apply rigorously. Henry was equally determined to impose his own lay law (which also had recently been considerably enlarged in content and strengthened administratively).2 Many people were amenable in criminal matters to both jurisdictions, and Becket proclaimed that such people should not be tried twice—in other words, they should be tried but once, and that in the Church courts. Then certain things also were subject to both jurisdictions—Church lands, and the rights of ecclesiastical patronage (called advowsons). Finally, at a council in 1164 all the magnates of the realm “recognised” (the word is borrowed from the “recognition” or verdict of a jury) a list of customs which they declared were the practice of the reign of Henry I.
This statement, called the Constitutions of Clarendon, Henry II proposed as the basis of a compromise.3 Some of these provisions repeat practices dating from the reign of William I, such as in requiring the King’s permission before a tenant-in-chief can be excommunicated, or an appeal carried from the Church courts in England to Rome (cc. 7, 8, 10). Chapter 13 introduces the striking rule that a lord shall be held responsible by the King if his servants do wrong to a bishop. All litigation concerning advowsons is to be in the King’s court (c. 1), and so also cases involving the Church’s lands unless they be held in free alms (a tenure comporting no earthly services, and peculiar to Church property), but the fact of free alms or lay tenure is to be decided in the King’s court—which had been the rule in Normandy as well (c. 9). Chapter 15 contains the highly important rule that no plea of debt shall be withdrawn from the King’s jurisdiction on the grounds that the debt was accompanied by an oath or pledge of faith—spiritual censures may be imposed for breach of faith, but the civil jurisdiction over debt is not to be thereby ousted. This clause was not an unmixed benefit, for although the State thereby appropriated to itself a large jurisdiction over contract, nevertheless the law of the Church in this field was rapidly becoming more modern, more equitable and less formalistic. She had long punished breach of faith as a crime, and was soon to extend the idea and proclaim in addition the enforceability in law of promises (opinions to this effect appear first in 1212).1
Finally, it was declared by chapter 3 that clerks (that is to say, all who were in major or minor orders) when under accusation of crime should first answer in the King’s court, and then be remitted for trial by the bishop, and if he convicted, then they were to be returned to the lay court for punishment, for Henry insisted that degradation (the severest penalty the Church could inflict) was too mild for felonies. Last of all, Henry objected to laymen being tried in ecclesiastical courts, even for canonical offences, merely upon informations. So he offered the bishops
