ishments seemed wholly inadequate. Henry's instant determination to bring this condition to an end brought on the famous conflict with Thomas Becket, the Archbishop of Canterbury of his own appointment.11 It is the constitutional aspect of this conflict only with which we are concerned. Henry succeeded in getting from the archbishop a promise to observe the ancient customs of the realm, and this would have settled the matter in the king's favor if it had been faithfully observed by Thomas, for there is no doubt but that the king's position with reference to the jurisdiction of the state courts was historically correct. But Henry did not stop with this concession, and the archbishop had some justification in refusing to be bound as the matter was finally put. In order to make a permanent record of the relation between the two sorts of courts, the king demanded of the great council a recognition of the ancient customs of the kingdom. A "recognition was the formal answer of the jury appointed to make an inquiry, or "inquest," and the document which we have, the Constitutions of Clarendon, of 1164, the first of the great constitutional documents of Henry's reign, may well have been drawn up by a jury, but we do not know how the jury was made up and the document itself had more nearly the form of an act of the great council.12 99 The Constitutions did not demand that the state court should try the question of the guilt of the accused man, if in orders, but that he should be arrested by the state officer, to be brought before a state court for accusation, then turned over to a church tribunal for trial and, if found guilty, for degradation from his orders. Then he was to be returned to the state for sentence and punishment. But the Constitutions went beyond this particular question. They reasserted practically the three rules of William I, though the pope was not specially referred to; they pro11 Cheyney, Readings, 143–160. 12 Stubbs, S. C., 161-167; A. and S., 11-14. CONSTITUTIONS OF CLARENDON 97 vided that suits as to the right of presentation to churches should be tried in secular courts, and also suits as to the ownership of land, unless it could be proved that the church held by the frank-almoign tenure; and they defined clearly and emphatically the feudal position of the bishop as a vassal of the king's. Becket refused to be bound by the Constitutions though the other bishops submitted, and the struggle between archbishop and king ran rapidly to extremes, and finally to the murder of Thomas. The reaction which followed against the king was natural, and he was obliged to abandon in form his most extreme claims in order to obtain reconciliation with the church. In practice, however, he did not keep his promises any more faithfully than his grandfather had done. In the end the state secured all that the Constitutions asserted with the one exception of the punishment of clerics accused of felonies less than treason. The punishment of treason and of misdemeanors remained to the state. The exception in the case of felonies is what was long known in English law as "benefit of clergy"— one accused of a felony "pled his clergy" pled that he was in orders and so could not be tried or punished by the state. If the fact was proved according to the established rules, he was turned over to the ecclesiastical court and so escaped the punishment inflicted by the state. BIBLIOGRAPHICAL NOTE.-C. H. Haskins, Norman Institutions, 1918; The Abacus and the King's Curia, E. H. R., xxvii, 101, 1912. W. A. Morris, The Office of Sheriff in the Early Norman Period, E. H. R., xxxiii, 145, 1918. R. L. Poole, The Exchequer in the Twelfth Century, 1912. J. H. Round, Geoffrey de Mandeville, 1892; Feudal England, 1895; The Commune of London, 1899; The King's Serjeants and Officers of State, 1911. T. F. Tout, The Administrative History of Mediæval England, 2 Vols., 1920. CHAPTER IV CENTRALIZATION AND LAW Henry II, could not have foreseen the ultimate results of the reforms introduced in his reign, though they were to be of such enormous consequence in the legal and constitutional history of the future. No man of his time could have foreseen all, and Henry was not distinguished by any special foresight even in the simpler political problems that confronted him. It was indeed probably as a political problem that the king looked at the question of reform. The central government had been weakened; its strength must be restored. There had been much crime and disorder in the country; it must be repressed. Life must be made secure. Property must be protected. The contemporary conception of the first duty of a king, which Henry no doubt shared, was that he should make justice prevail. The good king was a "lion of justice," as men called his grandfather, and Henry avowed that his ambition was to follow in his grandfather's steps. There was, however, a little more direct advantage for the king's government in the policy which he followed than the satisfaction of duty performed, and this further advantage was undoubtedly a motive of action. The machinery of administration and of justice was identical in that day. To improve the machinery of justice was to improve the collection of the revenues and increase the royal income. To improve the courts in itself was to increase the revenue because it increased the number of fees and amercements falling to the crown, by no means a small source of income. Some one who was influential in carrying through those changes, either the king or some of JUDICIAL ORGANIZATION 99 his ministers, had other motives also in what was done. The age is one in which the processes of justice, the organization of the courts and the procedure necessary to secure justice in them, was greatly improved. There is no reason why we should not suppose that these improvements were foreseen and desired, and that the government believed it worth doing to make justice easier to secure and the ways of getting it simpler and more certain. It was a time of great lawyers and administrators who had a large share in actual government. It was upon this side, judicial organization, law and procedure, that the institutional results of this age were to have the longest life in a form but little changed from that then given them. The constitutional results of the period have been equally permanent, and of even more vital importance in the history of the race, but they show themselves today in forms that never would be recognized by the ministers of Henry II, though Richard de Luci and Ranulf Glanvill, Henry's great judges, would quickly feel themselves at home in a court of law in any part of the AngloSaxon world. There would be much that would seem strange to them, and much that they would not understand at first, especially in substantive law, but in machinery and procedure they would recognize at a glance their own work and quickly they would see how all had come out of the beginning they made, for the common law and equity of all Anglo-Saxon states, as well as their judicial organization, was founded by them. This side of our institutional life, as the immediate result of the time, must occupy us chiefly in this chapter, but we must also keep the constitutional result constantly in mind. The constitutional result in a single word was centralization. The new organization given to the judicial system and the new processes of securing justice were an organization of centralization. Through these new methods the Norman central government reached down into every locality The Norman central gov and put its hand on every man. ernment had always been an absolutism, but it had been a practical absolutism, not one vested in constitutional forms. What was happening now was that this Norman absolutism was making itself constitutional, was finding its expression in law and institutions. If it should succeed, if it could transform itself from a thing of habit merely, into the spirit and necessary interpretation of all the organization and machinery by which the state did its business, it would obtain a security and permanence of threatening import for the future. So far as the result of his own reign is concerned, Henry II did all in this direction that could be done, more indeed than might have been expected. The machinery which was devised created a surprisingly efficient centralization for the twelfth century. It was left to the future to determine its permanence. The first great age of change in the constitutional history of England, after the Norman Conquest, shares one of its prominent characteristics with all ages of similar change in history. It is less marked by the invention of new institutions than by the enlarged use of old ones or their use in new applications. The effective instruments of the changes made are the institutions which the Normans brought with them into England, king's justices, circuit courts, writs and juries. We can find traces of most of these specific changes in earlier times, either in those of Henry's father in Normandy or of his grandfather in England. But their combination into a coördinate, organic system, their permanent incorporation into the habitual machinery of the central government, and the opening, under fixed regulations, of this royal machinery to the use of any one who wished to use it, were the work of Henry II. It is only in a few cases that we can tell exactly what innovations were made, or the order in which the steps were taken, or their date. The best that we can do is to treat the subject logically, beginning with the things that are |