Post-classical history

Chapter 2
Angevin kingship: making and breaking royal law

King Stephen died within ten months of the proclamation of his peace. In 1154, Henry Plantagenet found himself not only heir to his father’s estates in Anjou and to the conquered duchy of Normandy but to the throne of England once held by his grandfather, King Henry I. At or shortly after his coronation, he issued yet another ‘coronation charter’, a brief statement addressed to his earls, barons, and faithful subjects, sealed with his royal seal, notifying them of his determination, ‘for the common interest and improvement of my whole realm’, to restore to God, the Church, and all his earls, barons, and men all gifts, liberties, and free customs granted by King Henry I, repudiating all evil customs that Henry I had repudiated. The idea of a community, of the realm, and of the common interests of the English people was already an ancient one. In 1154, it was once again advertised as something under the particular protection of the Church and king. The king recognized no superior authority. He was placed on earth as God’s vicar. But in his actions, he necessarily had to promote the common interests of his realm in accordance with the Church’s teachings.

By the time of the establishment of the Plantagenet dynasty on the throne of England, a number of principles vital to the future issue of Magna Carta had already been agreed: recognition of a code of laws whether written or, more often, customary and unwritten; the issuing of promises by the king to uphold such laws and to recognize the liberties of his subjects; and a role for the Church in negotiating and broadcasting such promises. Far from being a unique or entirely novel statement of principles, Magna Carta was merely the latest in a series of such charters issued by the kings of England to their subjects in the years before 1154, intended to advertise the king’s virtue, to promote peace, and to re-establish harmony between king and community. What was unusual about Magna Carta was first and foremost its size and the detail with which it sought to regulate the king’s dealings. Secondly, it followed after a great hiatus in English politics, between 1154 and 1215, when Henry II and his Plantagenet successors issued no further coronation charters and threatened fundamentally to destabilize the relationship between king and people. This destabilization was itself the product of the particular pressures under which Henry II and his successors were placed.

Henry himself was heir to the rulers of England, Normandy, and Anjou. Through a marriage hastily negotiated in 1152 to the recently divorced wife of the King of France, Eleanor of Aquitaine, Henry found himself as de facto ruler of a vast swathe of territory extending from his father’s lands on the Loire as far south as Bordeaux and the badlands of the French south-west. Through a combination of fortuitous circumstance and dynastic accident, Henry became ruler of an ‘empire’ that extended from the Cheviots in the far north of England to the Pyrenees on the frontiers with Spain. His was the greatest territorial lordship in France, and one of the greatest in western Europe, amassed since the reign of the Emperor Charlemagne more than three centuries before.

Two imperatives henceforth dominated Henry II’s reign: the need to restore public order and royal authority in an England recently ravaged by civil war, and the need to defend his vast French territories from the threat posed by his principal rival, Louis VII, the Capetian King of France. In both of these objectives, Henry was broadly successful. In both, silver was the principal fuel of his success. His great wealth, particularly the wealth derived from the much-governed and hence much-taxed realm of England, enabled him to pay for armies and castles with which to defend his lordships in France. It also paid for the public display of his majesty and might across his widely scattered dominion. Here, the Exchequer became a vital instrument of his regime.


2. The Angevin empire

Named after the chequered cloth that served as a primitive abacus for the calculation of its profits and losses, the Exchequer was already in existence within fifty years of the Norman Conquest. Its origins indeed stretch back to the remarkable tax-gathering capacities of the Anglo-Saxon kings. It was to the Exchequer, certainly from the reign of Henry I onwards, that the sheriffs of England were called to account for the profits from lands, from the administration of justice, and from the myriad other sources of the king’s income tapped in the form of millions of silver pennies now paid across the Exchequer cloth at Westminster. A large part of this income came from the king’s administration of justice and from judicial ‘fines’ and ‘amercements’: payments made for the settlement of disputes, charges made against particular individuals for wrongdoing or for incurring the king’s displeasure, on occasion shading into what were in effect bribes for the king’s favour in furthering the cause of one landholder against another. Such fines were an age-old phenomenon and are recorded as early as the very first of the Exchequer’s surviving accounts, the so-called ‘Pipe Roll’ drawn up in 1130 to record the profits and losses of Henry I’s twenty-ninth year. Similar Pipe Rolls (named from the fact that they were originally rolled up and stored in a container shaped like a length of piping) were clearly being drawn up earlier in Henry I’s reign, and thereafter survive in virtually unbroken sequence from the second year of Henry II, 1155–6, through to the 1830s when the Whig administration elected in the aftermath of the Great Reform Act cleared away at least part of the clutter and sinecurism inherited from the medieval past.

Precisely because they are mere lists of profits and losses, untinged by the rhetoric or exaggeration that casts the opinions of the chroniclers into suspicion, the Pipe Rolls reveal more clearly than any other source the extent to which the government of Henry II and his sons was founded upon extortion and the use of ‘justice’ as a tool not of abstract right but of royal policy. In a situation, after 1154, in which the legacy of Stephen’s reign ensured that there were very frequently two or more barons laying claim to a single estate, the opportunities for the king to profit were irresistible. Courtiers shared in this bounty. But they too were ultimately subject to royal whim, caught up in the rise and inevitable fall of the great wheel of fortune. A few examples must suffice. Robert Belet, the king’s hereditary butler, was accused of insolence in denying the king a gift of a sparrowhawk. He was forced to buy back royal favour through a fine of £100, imposed in 1165, still being paid eighteen years later and involving the loss of a significant portion of his lands. Henry of Essex, the king’s constable and heir to one of the few Anglo-Saxon landholders to have weathered the storms of the Norman Conquest, was accused of cowardice in dropping the king’s banner during Henry II’s Welsh expedition of 1157. He was forced to undergo an ‘ordeal’, in a trial by battle against his chief accuser. Henry lost the fight and was left for dead, an object lesson in how God himself could ultimately judge the right or wrong of any dispute. His lands were confiscated by the king.

Such drastic declines in fortune were comparatively rare during the reign of Henry II: most of those who prospered at Henry’s court were permitted, albeit with an imminent sense of fear and foreboding, to reap the harvest of their prosperity. Even so, the most dramatic of all the incidents of Henry’s reign, the king’s great falling-out with his former chancellor, Thomas Becket, can be seen as yet another outcome of the arbitrary and uneasy nature of the king’s favour. Becket, once the king’s boon companion, elected archbishop of Canterbury as a direct result of the king’s friendship, refused as archbishop to do the king’s bidding. The outcome was a state trial at the Council of Northampton in 1164. Becket was called to account for all of the profits that he had made as the king’s favourite. He instead sought exile overseas: an exile that ended six years later with his dramatic return to Canterbury and his no less dramatic murder on the flagstones of his own cathedral church.

In all of this, the Exchequer at Westminster, joined from the 1170s by similar Exchequers for both Normandy and Ireland, presided over the manoeuvring of royal finance, with the king and his needs arbitrarily trumping the moves of all other players. Using the financial resources which the Exchequer bestowed, and with his sons and daughters serving as pawns in a game of dynastic chess, Henry forged alliances with the ruling families of Germany, Sicily, Spain, and France. With the king of France branded an incompetent in military affairs, Henry extended his authority inland along the valley of the River Seine to within only twenty or thirty miles of Paris. Paris indeed became a frontier city, supreme as a centre of learning and culture yet perilously encircled by the great power blocks ruled by the kings of England in Normandy, the counts of Flanders north of the Seine, and the counts of Blois-Champagne to the south and east. Meanwhile, having seized back Northumberland and Cumbria from the king of Scots, in 1172 Henry fulfilled a long-term ambition to carry his lordship into Ireland, intervening in what had previously been private warfare led by Anglo-Norman mercenaries to declare himself ruler of Dublin and the south-eastern regions of Leinster and Meath. All of these conquests and consolidations were financed from the profits of lordship and war, above all from the rich resources of England and the English crown.

The literary monuments left behind by Henry’s court are every bit as extraordinary as the extent of his ‘empire’. Not since Charlemagne could one ruler claim to have presided over so rich an assembly of written memorials. The chronicles of Roger of Howden or Ralph of Diss; the treatise on government (the Policraticus) composed by John of Salisbury; the letter collections of Peter of Blois; the treatise on the king’s finances (the so-called Dialogue of the Exchequer) written by Henry II’s treasurer, Richard fitz Nigel; the collection of tall stories composed for the court’s entertainment by Walter Map; the book on manners and deportment written by Stephen of Fougères, a former servant of the king’s chancery – all of these books and much else besides testify to a determination to memorialize the court of Henry II unrivalled by any other court of 12th-century Europe. What is remarkable about these writings is not just their range and richness but the fact that, in the very act of celebrating the court, they express such biting criticisms of king and courtiers alike. Far removed from the sycophantic literature sponsored by the Capetian kings of France, Plantagenet court writers encouraged a view of Plantagenet government that was as sinister as it was magnificent.

Behind this lay two perceptions. The first, a prejudice age old and already familiar from the writing of Roman authors, most notably from Suetonius’s biographies of the first Twelve Caesars, was that the new imperial dynasty of Henry II was itself an unstable and parvenu phenomenon, risen from the dust by accident and circumstance to only brief supremacy over human affairs. Not just secular philosophers but the Church taught that royal authority was something inherently fleeting and untrustworthy. The Bible was as full of bad as of good kings. Against every Solomon or David could be raised an example of a tyrant, whether a foreigner such as Pharaoh or an Israelite such as Herod. Although dressed and crowned as kings, the Plantagenets were perceived as having set themselves up as vain yet unworthy challengers to the supremacy of God.

It was this irrationality, instability, and unpredictability of Plantagenet kingship that emerged as a principal theme in criticism of the Plantagenet court. The image, for example, derived from the letters of John of Salisbury, of Henry II so ‘aflame with his usual rage, (that) he tore his hat from his head, undid his belt… tore the silken covering from his bed, and began to eat the straw on the floor, as if he were sitting in a ditch’; the tradition that the Plantagenets were themselves descended from a she-devil, Melusine, half-woman half-serpent, reported as early as the 1150s in a remark attributed to St Bernard (‘From the Devil they came, and to the Devil they will undoubtedly return’); the idea, to be found in anecdotes recorded by Walter Map or Peter of Blois, that the Plantagenet court was heir to the pursuits of the mythical huntsman, king Herlequin, doomed to wander the earth from region to region like demons of the underworld, dining by candlelight rather than by the natural light of day; the very idea of hunting as a defining feature of court culture, of the deliberate and ritualized shedding of blood as an action appropriate to a king whose justice on occasion required the pronunciation of sentence of death – all of this speaks of a kingship that was far from universally admired.

The authority exercised by the Plantagenets was subject to particular as well as to generic criticim. Henry II might be perceived as a powerful ruler whose authority traversed the English Channel, but his power was itself tarnished by rumours of violence, lust, and avarice. The greatest of Henry’s crimes, overshadowing all others, was his involvement in the murder of his own archbishop, Thomas Becket, struck down in Canterbury Cathedral in 1170. Henry II did not directly order the murder of Thomas Becket. But he could not escape the charge that his anger had provoked the deed. Becket’s dispute with the crown had begun with personalities rather than ideology, as the outcome of friendship networks turned poisonously sour. Yet its startling climax, the murder in the cathedral, and the recognition throughout Christendom that Becket had died as a saint and martyr, victim to the violence provoked by an angry king, lent a wholly new slant to criticisms of Henry II and his dynasty. Henceforth, the Plantagenets could never entirely escape the perception that they were, of their essence, a family of bloodshed and impiety.

As if it were a direct result of the king’s loss of God’s favour, Becket’s murder was followed within a matter of only three years by an eruption of violence within the Plantagenet family itself. In 1173, Henry II’s wife and at least three of their sons joined in rebellion with the kings of France and Scotland. Earls and barons who had resented the past twenty years of Henry II’s ascendancy, but who had remained powerless to oppose it, now rose to support the rebellion of the king’s sons. Local grievances, allowed to lie dormant since the reign of Stephen, were once again voiced. Old wounds were re-opened. The chaos of Stephen’s reign seemed about to be revisited. In all of this, the perception that the king had broken faith with the Church and that God would condone the humiliation of a king who had himself condoned the murder of St Thomas Becket played no small part.

Yet, in the outcome, it was not the rebels but the king who triumphed. By Christmas 1174, Henry II was once again in full command of his family and his lands. Where previously he had controlled a minority of England’s castles, he now seized so many from the rebels of 1173–4 that never again was he to have control of anything other than a majority. Fines imposed at the Exchequer in the 1150s or 1160s and set for payment over many years or decades were now rescheduled for immediate collection. The Exchequer functioned here as a tool of arbitrary royal power. Where, in the 1160s, the business of the king’s courts had begun to expand, to allow for new processes in the administration of justice and the settlement of disputes over land, after 1174 the floodgates opened to admit a vast increase in the business, both civil and criminal, that the royal law courts now handled.

It is in this period that historians have sought to place the emergence of the English ‘Common Law’: a system based upon custom and precedent, governed by procedures themselves initiated by writs or letters of instruction obtainable from the king or his chief law officers. Although the roots of this system stretched back into the Anglo-Saxon law codes by which legal custom had first been clarified and codified, its precise procedures are first described in detail in the treatise attributed to Glanville composed in the 1180s. This was a system of law subject to the king, that could ultimately be subverted or overturned should the king decide either to delay or to deny what might otherwise be agreed was ‘justice’. Delay was one of the principal techniques of Angevin government. Indeed, Henry II is said to have been instructed by his own mother, the Empress Matilda, that it was better that the king withhold final judgment and fail to bring resolution to a dispute if, by this means, both parties could be persuaded that it was in their best interests to buy the king’s friendship. The idea that the king should set down what was just or customary in the form of written laws, governing not just his subjects but the king himself, was not an innovation of Henry II’s reign, let alone of the period after the failed rebellion of 1174. Even so, it was during this same period that chroniclers, most notably the Yorkshireman Roger of Howden, himself a minor official in Henry II’s service, first began to record the texts of specific ‘assizes’, or laws emanating from the king.

Under Henry II, there was a very considerable increase in the jurisdiction of the king’s courts and in the degree to which they were staffed by legally trained, semi-professional judges competent to administer justice both over property and over crime. An increase in the supply of the procedures of justice met an increase in popular demand for justice to be done. Whether supply or demand was the motive force here remains one of the more significant debating points for historians inclined to view these developments as an extension of the jurisdictional powers of the crown rather than of abstract ‘justice’. What is not in doubt is that queues of litigants emerged, eager to bring their disputes for the king to settle. New written instruments, the so-called ‘Final Concords’ setting out, in semi-official and self-consciously ‘legalistic’ Latin the terms of court settlements, the king’s assizes, and, from the 1180s onwards, the very court reports that the justices had drafted (the so-called ‘rolls’ of the justices), begin to survive in ever increasing numbers. Roger of Howden, moving in court circles, was in a position to acquire copies of half a dozen of the king’s assizes henceforth preserved in his chronicle. This is a pathetic rate of survival for the king’s laws, at least when compared with later times. For example, two of the most important of Henry II’s assizes, introduced in the 1160s and intended to provide speedy redress for large numbers of litigants seeking the restoration of property claimed by direct inheritance (‘mort d’ancestor’) or from which they could show they had been recently ejected (‘new seizures’, hence ‘the assize of novel disseisin’), are known only from their effects and their later acceptance as standard procedures in English law. The texts of these assizes, the law or ‘statutes’ by which they were proclaimed, have been entirely lost. Even so, the ‘Assize of Clarendon’ of 1166 and its successors, preserved by Howden, are the first official codifications of law into statute form to survive in England since the Laws of Cnut issued in the 1020s.

The ‘Assize of Clarendon’ was an attempt by Henry II to control (or at least to be seen attempting to control) crime, to punish robbery and murder, to ensure that gaols were maintained in each county town, to deter vagrancy, and to ensure that all lived, to some extent, under the watch of neighbours or lords willing to vouch for their good conduct. Ironically (and somewhat confusingly), the ‘Assize of Clarendon’ followed only three years after another written text, the so-called ‘Constitutions of Clarendon’, proclaimed at the same royal hunting lodge at Clarendon in Wiltshire, in the case of the ‘Constitutions’ as an attempt to set out in writing the extent to which the English Church should be subordinate to the king. It was the ‘Constitutions of Clarendon’, and their repudiation by the Church, that served as one of the principal rallying cries in Henry II’s dispute with Thomas Becket. What was remarkable about the ‘Constitutions’ was not that they were asserted – kings had traditionally exercised considerable authority over the day-to-day government, office-holding, and resolution of disputes within the Church – but that they were reduced to writing. England and England’s kings were entering a new age in which law and custom were increasingly to be regarded not as immemorial traditionscommitted to the memories of the older and more respectable members of the community, but as ‘laws’ in the modern sense, issued as written decrees. By issuing his laws for the Church in the form of the highly controversial Constitutions of Clarendon, Henry II set a precedent for other sorts of written law, not least for Magna Carta, seeking not to license but to the curb the arbitrary exercise of royal power.

The Assize of Clarendon, like the subsequent Assize of Northampton, is a text principally concerned with the king’s role as protector of his people and hence with the obligations of local lords and officials rather than with any greater abstractions or legal principles. It envisages a situation in which a great deal of law continued to be a matter of self-help, and in particular a situation in which the detection and punishment of criminals remained an ad hoc affair, brutally administered through trial by battle or the digging of ordeal pits and the subjection of those accused to ritual submersion in water or the carrying of red-hot irons to prove or disprove their guilt. Nonetheless, from the 1160s, we can already point to a body of statutory laws issued by the king, proclaimed in the king’s courts, above all in the county courts of the various English shires. Such laws were composed in abrupt yet precise Latin phrases, themselves owing something to the longstanding tradition of Anglo-Saxon law-making, something also to the wider European tradition of laws made both by the Roman emperors of antiquity (reported in the so-called Corpus Iuris Civilis) and by popes and churchmen as reported in the various digests of Canon Law.

Henry II’s legal reforms themselves had little to do with a search for abstract ideas of right or equity. They speak instead of the determination to employ law as a symbol and instrument of royal authority. In particular, law would be used to heal the wounds of the 1140s and to re-establish royal control over property disputes that during Stephen’s reign had been determined not by the king but by inter-baronial feuding. Law would also encourage large numbers of litigants, ranging from barons to priests and from the higher aristocracy all the way down to peasants owning a few acres of land, to settle their disputes in royal rather than in private baronial courts. Cases that might previously have been heard in the lord’s manor court, or before the lord himself, were now diverted, thanks to the king’s new legal procedures, to be settled in the courts of the king. Thanks to the considerable increase in their business, the king’s courts began to expand both in competence and in the frequency and bureaucratic uniformity of their meetings. Some cases continued to be brought before the king in person (to the court ‘coram rege’). More often, however, litigants appeared before the king’s justices and officials, sometimes in the Exchequer, but increasingly in the ad hoc sessions held before groups of Exchequer and other royal officials now known from their place of meeting in Westminster Hall as ‘The Bench’, subsequently described as the ‘Court of Common Pleas’. To ensure that criminals detained in local gaols were brought to justice, and to deal with the backlog of property and other disputes in the shires, from the 1160s regular judicial visitations of England were organized, known as ‘eyres’, in which the king’s justices, and considerable numbers of the king’s friends drafted in according to need, served as judges travelling in circuit from shire to shire. Perhaps as early as the 1150s, other ‘eyres’ were convened to deal with justice within the forests: parts of England, at their fullest extent covering nearly one-third of the country, where the game was to be preserved for the king’s hunting, and where particularly brutal punishments – maiming and ultimately death – had been introduced to penalize those who trespassed either against the game (the ‘venison’) or the ‘vert’ (the natural habitat in which game was preserved).

To meet the needs of this new world of law and lawyers, the king’s justices, originally recruited from amongst the ranks of the sheriffs, Exchequer officials, or courtiers, became increasingly specialized professionals, learned in the law and dealing for most of their careers with matters of justice rather than with more general duties to the king. To represent litigants in court, and to guard against the expensive consequences of incompetent pleading, a distinct body of legal experts emerged, offering professional counsel to those pleading in court. From these developments emerged those representative figures, the judges standing in place of the king, and the attorneys standing in place of their clients, who today still embody the traditions of English law. The emergence of the legal profession was itself to a large extent a consequence of the reforms of Henry II.

Besides boosting the image and majesty of the king, Henry II’s reforms supplied a very practical boost to the king’s finances. Court fees and not so officially sanctioned bribes now swelled the king’s coffers. Fines and ‘amercements’ paid for settlements, for mispleading in court, or for failure to attend court hearings, money offered behind the scenes to speed procedures or to ensure a successful outcome for one party or another, had long been an occasional profit of lordship. As early as 1130, when the earliest surviving Exchequer Pipe Roll allows us our first glimpse of the king’s income, the profits of justice were already a major source of royal wealth. Since a large part of this business was unofficial, concealed in the shadows in which bribery and peculation flourished, we can assume that even the very considerable legal profits revealed from the Pipe Rolls represent only the tip of a far larger iceberg. From the 1160s onwards, these profits soared, far outstripping the additional costs of reorganizing the courts. The justices themselves could expect rich pickings, not so much through official salaries or retainers, but from the backstairs intrigue, the bribes, the offerings of food and drink and other inducements that were made by litigants keen to buy a favourable hearing. As new legal remedies were devised, and as increasing numbers of litigants were encouraged to plead in the king’s rather than in private courts, so the principles of supply and demand came to apply as much to the law as to any other aspect of the economy. By the 1190s, it was difficult for anyone above the level of the humblest peasant to avoid a regular haemorrhage of amercements and fees paid for actions in court. By the same token, there were remarkably few English property-holders who were not made regularly and personally familiar with the procedures of the king’s courts.

From the king’s courts came an image of the king as God’s vicar on earth, a sense that the king himself stood in judgment above the petty disputes of his subjects and a regular stream of income from fines, bribes, and payments for justice. The great legal ‘revolution’ of Henry II’s reign, sometimes described (in hyperbolic terms, since law itself was born long before this) as the ‘Birth’ of the Common Law, was intended to support strong kingship, not in any way to act as a brake upon the king’s sovereign authority. Law, indeed, tended to bolster Plantagenet ‘tyranny’ just as much as it protected the rights of individual subjects against interference by overmighty kings. Litigants, jurors, and local landholders, though they became increasingly familiar with the king’s courts, were at the same time made aware that the king himself claimed to stand above the legal procedures and obligations enforced on his subjects. The great Angevin ‘legal leap forwards’ reinforced ideas of the king’s sovereignty, but only at the expense of advertising the king’s own essential immunity from justice or prosecution. The more royal government came to depend upon the law for its income and self-image, the more the king’s subjects were likely to resent the king’s own apparent disrespect for the laws that he claimed to administer. To this extent, in the very success of Henry II’s legal reforms were planted the seeds from which grew that bridling and restraint upon royal power embodied in Magna Carta. Issued almost exactly sixty years after the proclamation of Henry II’s first assizes, Magna Carta can be seen as an attempt to bring the king himself within the legal restraints that, from the 1160s onwards, King Henry II and his sons had sought to impose upon their subjects.

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