CHAPTER IX
LEGAL AND CONSTITUTIONAL HISTORY OF THE REIGN
The reign of Henry II. is of particular importance in English constitutional and legal history. It was a period of evolution, of crystallisation, a period of transition. As in architecture we have at this time the transition from Norman, or Romanesque, to Gothic, so we have the transition from oral tradition and custom to written law and formula. As the Saxon blood was blending with the Norman to form the English people, so Saxon law was assimilating Roman law and the theories of the Canonists to form English law. The genius of Henry lay rather in organisation than in initiative. Possessing an innate love of justice and an instructed appreciation of legal forms, he set himself to evolve method and order from the somewhat chaotic confusion of conflicting customs. Under his hand the young plant of English law was pruned, trained, and bent in the direction in which it was to grow during the succeeding centuries. His natural inclination for the work was doubtless whetted by the twofold consideration that every extension of the central royal jurisdiction involved a diminution of local feudal jurisdiction and that increase of legal control implied increase of revenue. The personal part played by the king in the administration of the law was striking. Constantly we find him sitting in a judicial capacity, following with more or less patience the involved arguments of the advocates, inspecting charters in dispute, criticising them shrewdly and impartially, and exhibiting a legal acumen which proved that he was worthy, apart from his rank, to preside over the ultimate court of appeal.[38] The strong arm of the law could hardly be invoked without his aid, and the slow foot of justice could only be hastened with his assistance. And for such assistance payment must be made. Henry was, indeed, notorious as a “seller of justice”; but if the commodity was expensive it was at least the best of its kind, and there is a profound gulf between the selling of justice and of injustice. A bribe might be required to set the machine of the law in motion, but it would be unavailing to divert its course when once started. When John le Viel, a wealthy citizen of London, was convicted of taking part in a series of outrages which culminated in the murder of Earl Ferrers’ brother in 1177, his offer of 500 marks to the king gained him no reprieve and he suffered the death penalty with his humbler and poorer accomplices.
It is partly owing to the personal predominance of the king as law-giver that exact dates and details of the institution or formal adoption of certain methods of legal procedure are hard to ascertain. A verbal instruction or a few written lines to the justiciar would be enough to establish a formula which would rapidly become a commonplace of law without exciting comment from any chronicler. There are, however, some four or five occasions on which a definite code of laws or regulations was published and duly recorded. The first of these was the code drawn up in 1164 to define the relations of Church and State. The circumstances in which these “Constitutions of Clarendon” were drawn up have already been considered. They were drawn up definitely as representing the rules in force in the time of Henry I., and it would seem that for the most part they could fairly claim this antiquity, though their continuity had been broken by the disorder of Stephen’s reign. That they lost something of their elasticity and became more pronouncedly favourable to the secular courts when they were reduced to writing can hardly be doubted, and that there was some small amount of actual innovation is highly probable, but it is as compiler rather than author that the name of Henry II. should be associated with the Constitutions of Clarendon.
By these Constitutions it was asserted (cap. 1) that all actions concerning the advowsons of churches should be heard in the king’s court,[39] even if both parties were clerks, and that (cap. 2) the king’s consent must be obtained before any church held in fee of the crown could be granted in perpetuity. By a further assertion of the royal proprietary rights (cap. 12) the king claimed to have the custody and control of all sees, and of such monasteries as were in the patronage of the crown, during their vacancies, and to determine when their new heads should be elected. Whatever may be said against this claim morally—and it certainly gave the king every inducement to prolong such vacancies and leave a wealthy see or abbey headless—it was undoubtedly a custom of respectable antiquity, based presumably on analogy with the king’s feudal right to the custody of the lands of his lay tenants-in-chief during the minority of their heirs. The identity of status of lay and ecclesiastical tenants was insisted upon in the order (cap. 11) that prelates and beneficed clergy who held of the king in chief should hold their lands as baronies and perform the services due therefrom, including the duty of sitting as judges on the Bench with the lay barons, save that they should not take part in pronouncing sentence of death or mutilation.
Besides pleas of advowsons all pleas of debt were now removed from the ecclesiastical courts (cap. 15), even when involving breach of oath. A third class of actions, those concerned with lands said to be granted in alms to churches, involved a more elaborate procedure (cap. 9). If a piece of land were claimed by a clerk as belonging to his church and by a layman as belonging to his lay fee the question was first to be referred to a jury of twelve men of good standing; if they decided that the land was held in alms the case should be tried in the ecclesiastical court, but if the contrary, then in the king’s court. The appearance of this jury of twelve is very important, and it occurs again in the Constitutions. Certain moral offences were admittedly the province of the Court Christian, but it was common knowledge that the archdeacons and their officials, whether from lack of legal training or of charity, accepted accusations on very insufficient evidence; it was therefore laid down (cap. 6) that such accusations ought not to be made against laymen unless supported by responsible witnesses; but in cases where witnesses dare not come forward, owing to the rank or power of the accused, a jury of twelve men of good standing might be summoned to inquire into the truth of the accusations.
In these two instances of the appointment of juries we have almost certainly innovations, and it is to Henry II. that we must attribute the institution of the trial by jury. It must be borne in mind that just as these twelve jurors differed in everything but number from the Anglo-Saxon “doomsmen,” whose office was to give sentence, so they also differed from the modern jury. The modern juryman is supposed to start with a completely open mind, and indeed in America even a remote and superficial knowledge of the nature of the case to be tried has been considered a disqualification; but the medieval jurors were men chosen for their knowledge of the matter in dispute; they were witnesses—not witnesses for the prosecution or for the defence, but, being summoned by an impartial authority, witnesses for the truth; they answered the questions put to them in the light of their personal knowledge and not as a result of deductions from the deliberately misleading arguments of rival advocates. The evolution and progress of legal procedure is always interesting, and particularly so in the case of the peculiarly English institution of the jury. The occasional appointment of juries of inquest to settle special points may, of course, be traced back for generations, but the definite establishment of the jury as a legal instrument dates from the reign of Henry II.
The claims of the spiritual courts were complicated by possessing a double basis; on the one hand they claimed all actions which could in any way be held to be concerned with morals or with the property of the Church, and on the other they claimed jurisdiction over all persons who had been admitted to the ranks of the clergy. While admitting the theory of clerical exemption in criminal cases Henry endeavoured to neutralise it in practice. The suggested compromise, which was the chief bone of contention between him and the Church party, was (cap. 3) that an accused clerk should be summoned before the king’s court, and if a primâ facie case were made out against him he should be remitted to the bishop’s court for fuller trial and sentence, the proceedings being watched by one of the royal officials. If convicted he should ipso facto forfeit the Church’s protection and become amenable to the common law. This latter proviso had to be abandoned, but within about a century of the birth of the Constitutions the royal courts had established their right to pronounce upon the guilt of an accused clerk before handing him over to the ecclesiastical court. While the Church was claiming exemption from lay justice it was natural that an endeavour should be made in retaliation to limit the scope of the Church’s sentence, and accordingly it was ordered (cap. 7) that no tenant-in-chief or royal officer should be excommunicated without the king’s permission, and a similar protection was extended (cap. 10) to all persons dwelling in a royal borough, castle, or manor. In both cases it was expressly stated that the king or his officials would endeavour to compel the offender to make satisfaction, so obviating the necessity for excommunication, and indeed it was laid down (cap. 13) that the royal and ecclesiastical courts should give one another mutual assistance in bringing offenders to book.
A further blow was aimed at clerical independence by the regulation (cap. 8) that there should be appeals from the archdeacon’s court to that of the bishop and thence to that of the archbishop, but that appeal from the archbishop’s court should be to the king’s court and not to Rome without royal consent. To prevent this rule being broken Henry maintained (cap. 4) that prelates and beneficed clergy had no right to leave the country without royal licence, and that in any case they must swear to do nothing to the prejudice of king or realm during their absence. The supremacy of the pope, however, proved to be too firmly rooted in the minds of the clergy, and these articles had to be dropped, Henry himself during the Becket controversy being obliged to resort to constant appeals and counter-appeals to the papal court.
During the seven years’ struggle with Becket which followed the promulgation of the Constitutions of Clarendon, Henry did not neglect the cause of legal reform, and early in 1166 he issued an important series of injunctions known as the Assize of Clarendon. These injunctions, turning upon the existence of a system of itinerant justices, whose presence in all parts of the country at frequent intervals they take for granted, prove that the custom of sending commissions of judges on circuit, which had been inaugurated by Henry I., but had fallen almost out of use, and certainly out of all regularity, under Stephen, had been restored by Henry II. The evidence of the Pipe Rolls shows that during the early years of the reign most of these “eyres,” or itinerant courts, were held by the leading royal officers, such as the chancellor, the justiciar, or the Earl of Essex, acting singly or together, but in 1176 the king divided the whole country into six circuits and appointed three justices to each circuit. For some reason this scheme did not work well, possibly from an excess of zeal and self-importance on the part of the justices, and in 1179 Henry revoked these appointments and constituted a central royal court of five justices; subsidiary to this permanent court he established four circuits, the commission for each circuit being five judges, though, by an apparent contradiction, the commissioners for the northern circuit were the officers of the permanent central court. The arrangement of the circuits varied from time to time and constant changes were made in the personnel of the judges, but the main features of itinerant courts with a permanent central court above them became fixed. From the central court there was appeal in cases of difficulty to the king and council.[40] As we have already said, Henry took a large personal share in the administration of justice, but he acted strictly within constitutional limits, and it was always the council that pronounced the sentence, though the influence of the king’s expressed opinion would naturally be paramount.
By the Assize of Clarendon it was ordered that the sheriffs and itinerant justices should make careful search for evil-doers throughout the country. Twelve men of good standing from each hundred and four from each township were to declare on oath what men in their district were known or suspected to be robbers, murderers, thieves, or harbourers of bad characters. All such were at once to be arrested and brought before the nearest justice and compelled to purge themselves by the ordeal of water. In this ordeal the accused was bound hand and foot and thrown into a pond or pit, of which the water had previously been consecrated by a priest.[41] If the water rejected him, so that he floated, he was considered guilty, his foot was struck off and his goods were forfeited to the king; but if the water received him and he sank he was dragged to land and his innocence was held to have been proved. But a sceptical feeling towards the ordeal was growing up, and the Assize ordered that if the repute of the accused were notoriously bad and the accusations against him well sustained, then, even if he acquitted himself by the ordeal, he should be banished from the country, being bound to leave England within a week, or as soon after as the wind would serve.
By reserving all cases of this type to the jurisdiction of the king’s courts and by authorising the sheriffs to enter any “liberty” or honour for the purposes of arresting criminals or of supervising the police organisation of frank pledges a severe blow was struck at the private feudal courts, and, incidentally, the security of the law-abiding populace was much increased. To strengthen this security yet more the king gave orders for the erection of gaols in every county and for the compilation of lists of fugitive criminals. No unknown wayfarer or vagabond might stay for more than one night in any borough unless he or his horse fell ill, and all newcomers settling in any county had to find sureties for their appearance before the justices, while a final haven of refuge was closed to the fugitive by the rule that no religious house should receive into its fellowship any man of the lower class (de minuto populo) without inquiry into his antecedents.
It is probably to this same year, 1166, that we may assign the Assize of Novel Disseisin, by which possession became not merely nine-tenths of the law but the law itself. Under this assize any person who was seised, or possessed, of a freehold and was ejected therefrom, or disseised, without a previous decision of the court, might recover his seisin by an action before the king’s court, without regard to the goodness of his original title. There is some reason to believe that this theory of the right of the actual possessor to remain in possession until the claimant had proved his better right to the property was recognised in the previous reign, but it was under Henry II. that it took definite form as a fixed method of legal procedure which formed the basis of innumerable actions in later times. About this same date, too, we find evolving another legal form which was to play a very important part in the history of the conveyance of land. It is self-evident that from time to time the parties concerned in a suit before the king’s court might find it to their mutual advantage to come to a compromise. As this would involve the abandoning of the suit, probably depriving the king of certain perquisites of justice and certainly rendering nugatory the trouble taken by the justices over the preliminaries of the trial, the king’s leave to compromise had to be purchased, and frequently the terms of the agreement were submitted to him for confirmation. To begin with, these agreements, which from their putting an end to the suit were called “final concords” or “fines,” would be drawn up casually, expressing each particular composition in such phrases as seemed most convenient, but the Justiciar Glanville, writing at the end of Henry’s reign, lays down a definite formula to be used in drawing up a Fine, and this formula can be traced back to 1172 and occurs, with slight variations, as early as 1163,[42] though instances before 1180 are rare. When these Fines acquired the recognised status of legal formulæ steps were taken to preserve official copies of them, and as soon as it was realised that the execution of a Fine was the surest way of securing a permanent record of a conveyance of land, or similar deed, it became the practice to bring fictitious actions with the express intention of compromising them and executing Fines. The Fine was, therefore, at a later date almost invariably the termination of a fictitious suit, but there is no reason to believe that this was so in the time of Henry II. to any great extent, and though we owe to him the formula of the Fine it remained in his time a genuine act of compromise, and incidentally a considerable source of revenue.
The administration of the Assize of Clarendon, especially of those portions concerned with forfeitures and pecuniary penalties, seems to have given rise to much complaint. The sheriffs were said on the one hand to have used their power to extort more than was due and on the other hand to have paid into the exchequer less than was due. Further rumours of peculation in connection with the aid for the marriage of the king’s daughter in 1168 having reached Henry’s ears, he suspended all the sheriffs in 1170, and ordered a careful and minute inquiry into the whole question. All moneys paid to sheriffs and other officials, or to magnates and their stewards, during the past four years, were to be set down, with a notice whether they were demanded with lawful warrant or without. The value of the goods of convicted or fugitive felons and the amounts paid towards the marriage aid were also to be returned, and note was to be made of any bribes accepted by the sheriffs or hush-money given by them. The inquiry was also to extend to breaches of the Forest Law and the conduct of the officials administering it. The only fragments of the returns[43] to this inquiry that are known to have survived throw little light on the general conduct of the sheriffs and their subordinates, though they illustrate the truth that taxation always soaks through to the lowest stratum of society. Although taxation under Henry did not fall with nearly so direct and crushing a force upon the poor as under King Louis in France, the large sums extorted from the English magnates had naturally to be raised by them in part from their poorer tenants, and if the king expected his lords to make large “gifts” of money to him it was natural that they should in turn impress upon their subjects the duty of giving “willingly” to them.
One immediate result of this inquiry of 1170 was the substitution of men from the ranks of the exchequer and court officials in place of local magnates as sheriffs. The change was a wise one, increasing the skill of administration and reducing the risk of extortion and undue use of influence. The continuous undermining of the baronial authority, of which this was but one more instance, had a double effect at the time of the young king’s rebellion in 1173; on the one hand it drove the more intolerant nobles to take up arms against King Henry, but on the other it put in the king’s hand a powerful organisation controlled by loyal officials, whose prospects were bound up with his own and supported by the mass of the people, who had every reason to appreciate his rule and to fear the victory of the feudal reactionaries. After the rebellion had quieted down Henry issued, at Northampton in 1176, an assize of wider scope than any other of his reign. The decrees of the Assize of Clarendon were repeated but re-enforced; forgery and arson were added to the Pleas of the Crown about which inquiry was to be made, and the convicted felon was to lose a hand as well as a foot. Returns were to be made of the escheats, churches, and heiresses who were in the king’s gift, and the justices were to try actions brought under the Assize of Novel Disseisin and were also given control of cases concerned with as little as half a knight’s fee. Finally, an important regulation was laid down that if a free tenant died his son and heir should at once have such seisin of the freehold as his father had at the time of his death, and the widow should have her dower. If the lord of the fee did not admit the heir of the freehold the justices should cause an inquest to be made by the jury of twelve men which had now become so integral a part of legal procedure, and if they found that the father had died seised the heir should recover possession. In this we have clearly the first enunciation of the Assize of Mort d’Ancestor, which in course of time was extended from the direct to the more remote degrees of kindred.
The work begun by the Assizes of Novel Disseisin and Mort d’Ancestor was brought to a logical completion in 1179 by the institution of the Grand Assize. By this assize any action concerning a freehold could be transferred from the manorial to the royal court. The demandant in the lower court was bound, as of old, to offer to prove his claim by the judicial duel, a clumsy process entailing endless delays and expense and the humiliation, if not death, of the defeated party, and often ending in a way clearly contrary to justice. Now, by this new regulation, the tenant when challenged might “put himself upon the assize”; the demandant would then sue a writ in the king’s court, four knights would be appointed to elect a jury of twelve knights, or country gentlemen as we should call them, associated with the district in which the disputed land lay. The jury had then to state from their own knowledge, or from what their fathers had told them, which of the two parties had the better claim to the land. If any of the jury did not know anything of the matter they were discharged and others put in their place, and if the knights were divided in opinion their numbers were increased until twelve decided in favour of one party. Knowing, as we do from the Plea Rolls of the next reign, how protracted a suit might be under this assize, we can appreciate from Glanville’s encomium on the comparative rapidity of the process how interminable must have been the proceedings under the old methods. It was not only a great extension of the influence of the king’s court, but was also a victory for common sense and sound law, and the absurd and illogical ordeal by battle rapidly fell into disuse, though it was not actually repealed in English law until 1819 and is still retained for the settlement of international quarrels.
The Grand Assize of 1179 is the last definite reform of Common Law procedure that we can connect with Henry’s name, but in 1184 he issued an Assize of the Forest. Under the Norman kings the doctrine of royal rights over those unreclaimed woodlands, moors, and heaths which were known as forests was rigorously asserted. Henry I., in particular, had so stretched his claims as to exercise jurisdiction over the sporting preserves of his barons, ignoring their rights and oppressing their tenants by the application of the arbitrary regulations of the Forest Law. Stephen had been compelled to relinquish all those forests which had been created by Henry I., and to confine the claims of the crown to those that were in existence at the time of the death of William Rufus, but Henry II. had gradually reasserted his grandfather’s claims, though not in their entirety. Henry himself was an ardent sportsman, finding in hunting and hawking an outlet for his ceaseless activity of spirit, and appears to have regarded poaching on the royal preserves as the most heinous of all offences. From the beginning of his reign justices from time to time toured the country inquiring into breaches of the Forest Law and mulcting the offenders, and we have seen how in 1176 he bled the whole country by a deliberate abuse of that same law, but it does not seem that any definite code was drawn up until the assize was published at Woodstock in 1184. Whether this was a stiffening of the laws in use, as is generally assumed, or a relaxation, or merely a codification, cannot be decided. In any case the laws, though severe, were less savage than those of Henry I. The technical details of the regulations touching the king’s forests and his subjects’ woods and coverts cannot here be dealt with, but some of the devices to stop poaching may be noticed. No one within the forest bounds might keep bows and arrows, dogs or hounds without licence; hunting at night involved a year’s imprisonment and a fine; all large dogs (mastivi) within the forest districts were to be hambled, that is to say, lamed by cutting out the ball of the foot, to prevent their chasing the deer, and no tanner or white tawer might ply his trade within the forest bounds outside a borough. Finally every man above twelve years of age within the forest district had to swear to observe the laws; this applied also to all clerks holding lay fees, and in many ways the most notable section of the assize is that which definitely asserts the susceptibility of the clergy to the Forest Law and authorises the royal officers to lay hands on clerical offenders.
CHAPTER X
FINANCE
Finance plays as prominent a part in public as in private life, and the fortunes of a nation are as much built upon a money basis as those of an individual. This somewhat obvious truism is particularly applicable to the reign of Henry II., owing to the important share taken by hired mercenary soldiers in his numerous campaigns, the wealth at the king’s disposal frequently enabling him to dispense with the service of disaffected or untrustworthy vassals. And the main source of this wealth was England, or at least it was from England that were drawn those extra supplies that formed the critical margin of safety, for while we hear constantly of treasure sent from England to the king or his ministers in Normandy we find no trace of any surplus from Henry’s continental treasuries reaching the treasury at Winchester. Fortunately we possess the material for our examination in the series of revenue accounts known as the Pipe Rolls, complete from the second to the last year of the reign.
The treasury, with the controlling machinery of the exchequer, had been fully organised under Henry I., and an analysis by Sir James Ramsay of the one surviving Pipe Roll of that king’s reign, that for the thirty-first year (1130), shows the total royal revenue to have been about £27,000. During the anarchy that prevailed under Stephen’s nominal sovereignty the organisation of the exchequer virtually fell into abeyance. While there is no evidence of Stephen having been at any time in difficulties for lack of money, it is clear that his permanent and assured revenues must have been very small. The districts in which his power was sufficiently established to ensure the collection of the royal dues varied from time to time and at best were limited, while their yield was still further reduced by the lavish grants of crown demesnes with which he had been compelled to purchase the allegiance of powerful barons. Henry II., on coming to the throne, had, as we have seen, resumed possession of the royal demesnes thus alienated, and he also entrusted the re-organisation of the exchequer to Nigel, Bishop of Ely. Order was soon restored, though it was several years before we find the same elaboration of the financial network as was exhibited in 1130.
A careful analysis of the Pipe Roll for 1156, the first of the series, shows that the total amount of the revenues dealt with, which exclude the issues of the three northern counties, still at that time in the hands of the King of Scotland, was in round figures £21,650. But of this £6000 has to be deducted for portions of the royal demesnes which had been granted to various persons, and for payments pardoned or remitted by the king. Another £2250 had not been paid and was still owing, a certain proportion being bad debts. Of the remainder, £9120 was paid into the treasury in cash and £4260 had been spent by the sheriffs and other accountants on the king’s behalf in payment of alms, repairs to buildings, wages and miscellaneous purchases. The actual revenue of this year may therefore be taken as about £13,000, or rather less than half that of Henry I. in 1130.
Turning now to the consideration of the sources of revenue, the first is the farms (firmæ) of the various counties and honours, these being fixed sums at which the sheriffs of the counties or the farmers of the honours compounded for the issues of the lands under their control. Upon occasion a county might for some reason be without a sheriff, in which case one or more wardens (custodes) would be appointed, and they would answer in detail for the issues and receive payment in reward for their services. In some cases the totals of these issues amount, as we should expect, to more than the fixed farm, the difference between the two sums being what the sheriff would have for his labour. But occasionally, and notably in the case of London,[44] the yield under custodes was considerably less than under a sheriff. It is hardly conceivable that the sheriff, in addition to the labour and responsibility of his official duties, should have been expected to make a loss over the render of his farm, but our knowledge of the methods by which the various moneys were collected before they reached the exchequer is too slight to enable us to explain this phenomenon. An incident which throws upon the question a light so uncertain as to render it almost more obscure occurred at the beginning of the Becket controversy. At a council held at Woodstock in 1163 the king demanded that a certain payment customarily made to the sheriffs from the lands of the counties under their control should in future be entered on the rolls and accounted for at the exchequer. Archbishop Becket rejected the demand, declaring that the payments in question were voluntary, that they depended upon the good conduct of the sheriffs, and that he would never consent to pay one penny on this account to the king. The chronicler who relates this incident at most length adds that the payment in question was two shillings from every hide, but this was almost certainly an error due to confusion with the Danegeld; the “sheriff’s aid,” about which the dispute arose, was not levied on any fixed basis but varied in different parts of the country.[45]
So far as we can see, the object of King Henry was to make the sheriffs more entirely dependent upon himself, drawing them into the position of the custodes as mere salaried officials of the exchequer; incidentally, no doubt, he hoped at the same time to obtain a substantial increase of revenue by appropriating the “aid.” The objection voiced by Becket seems to have been based precisely on the king’s wish to make the sheriffs responsible solely to himself; under the existing arrangement a sheriff who abused his authority ran the risk of losing the emoluments of his office, and even with this check these officials and their underlings not infrequently misused their power, extorting money from those under them and failing to account at the exchequer for money received. So notorious, indeed, did their maladministration become that, as we have seen, in 1170 Henry was driven to take summary action, removing all the sheriffs from office and appointing commissions to inquire into their conduct. Some of the officials thus removed were fined and very few were restored to their former position, but the new men appointed do not seem to have been greatly superior to their predecessors, and it is clear that whatever the sheriff lost or made over his farm he certainly possessed valuable perquisites, both legitimate and of doubtful legality.
The farms were the only fixed source of revenue, but an uncertain amount could always be relied upon from legal procedure (placita), fines inflicted for breaches of either the Common or Forest Law, amercements levied on hundreds, tithings, or townships for murders, payments made for leave to compound a suit begun in the king’s court, and penalties due from the defeated party in a judicial duel. For the most part the items under this head were small, though in the aggregate their amount was considerable, but not infrequently we find heavy fines inflicted upon men of wealth, for which no reason is given and which were in some cases, no doubt, arbitrary acts of extortion on the king’s part. In 1165 Earl Hugh of Norfolk paid half of a fine of 1000 marks, while the Abbot of St. Edmunds, William Cheyney, and two other East Anglican magnates were amerced 200 marks apiece. That same year Hugh de Mortimer was fined 500 marks, the Bishop of Lincoln 400 marks, Ivo de Harcourt 300 marks, Ralf de Cahaignes and Lefwin of York a like amount, the Abbot of Westminster £100, and Abraham, the Jew of London, £2000. The Jews, indeed, were a fruitful source of income: their financial genius had enabled them to concentrate most of the floating capital of the country in their hands. They had almost as much a monopoly of ready money as they had of the trade of usury. In this latter respect their monopoly was protected by the ban of the Church directed against Christian usurers, and, safe from competition, they lent their money at their own terms, usually about 60 per cent., to litigants, ambitious prelates, or impoverished monasteries, at one time financing an unauthorised expedition to Ireland and at another assisting the king with large advances.[46] Henry was too sensible of their value to persecute, or to permit his subjects to persecute, the Jews, but he had no scruples in fining them arbitrarily enormous sums, which might have been crippling if they had ever paid more than a fraction of them, and in 1188, when he ordered his other subjects to pay a tenth of their goods towards the crusade, he made the Jews contribute a quarter instead of a tenth. In this latter case one of the London Jews was allowed to compound for his share of the subsidy by a payment of £200, of which half was to be paid, perhaps by the grim humour of the king, on the Sunday on which the canticle “Rejoice, O Jerusalem” is sung. It was in the previous year that the wealthiest of all the English Jews, the famous Aaron of Lincoln, had died, and by the law relating to usurers, whether Jew or Christian, his immense possessions, equal apparently to more than the yearly revenues of the crown, had fallen to the king, only to perish in great part beneath the waves of the Channel.
If the death of a usurer brought grist to the king’s mill so did that of a prelate. However inexcusable from a moral point of view the seizure of the issues of vacant bishoprics and abbeys may have been, the temptation must have been strong. For example, the vacant abbey of Glastonbury in 1181 brought in £600 clear, and next year the see of Lincoln accounted for £1290 and that of York for £1260; Canterbury varied from £1100 to £1500. The farm of the bishopric of Winchester in 1172 was £1555; Ely produced nearly £900, and even Bath was worth £425 clear in 1167. Very few lay honours approached even the smallest of these sums, but with lay estates as with clerical the death of the tenant was made a source of profit to the king. If the heir were under age he and his lands would be taken under the royal protection and either managed directly for the king’s benefit or granted, for a consideration, to some person of position, who might or might not be a relation of the heir, while the tenant’s widow could be sold in marriage or made to pay heavily for the right of following her own choice. Even if the heir were of age and there were no widow to mulct, the new tenant would have to pay “relief,” or death duties, graduated on the simple lines of getting the utmost possible out of the landowner. For small estates the normal rate of “relief” was £5 for a knight’s fee, the average value of a fee being at most £20, but in the case of large estates the amount demanded seems, as we have said, to have been arbitrarily fixed by the king. In 1185 as much as 700 marks was demanded of the Countess of Warwick for the privilege of having her father’s land, her dower and liberty to remain single. To a certain extent these enormous fines, whether inflicted as succession duties or for other reasons, were bruta fulmina, defeating their own ends. Usually the debtor contented himself with paying yearly instalments, sometimes round sums and sometimes strangely complicated amounts which suggest a sudden demand from the sheriff satisfied by a prompt clearance of pockets. The first instalment was as a rule substantial; Fulk Paynel in 1180 paid 200 marks out of the 1000 marks demanded of him for the honour of Bampton; but in the same year Adam de Port only paid £40 out of a similar fine for possession of his lands and his wife’s inheritance in Normandy and for restoration to the king’s good favour. Fines might thus drag on literally for generations, the instalments often showing a tendency to dwindle away until they ceased, and either the king excused the payment of the rest or the sheriff wrote it off as a bad debt. Almost any payment on account seems to have been accepted, and in 1187 William Fitz-Ercenbald, who owed £2156 for arrears of farm of the silver mines of Carlisle, paid in the rather absurd amount of 13s. 4d.
Although all these sources could be counted upon to yield something every year the annual yield varied greatly. There were, however, means of raising extra occasional revenue, of which the amount could be foretold with some accuracy. In the first place there was the Danegeld, dating back to Saxon times. This was a tax of two shillings on every hide of land as rated in the Domesday Survey. It was levied in 1156, when the accounts show that if it had been collected in full it would have amounted to £4550, but owing to extensive remissions and exemptions, extending to a little over £2000, the total yield was only £2500. For some unknown reason this tax was only levied once more, in 1162, and was then allowed to fall into disuse. Of more doubtful legality but, as a rule, of greater profit were the “aids” (auxilia, dona) assessed upon the counties and boroughs from time to time, regulated apparently by the king’s need of money and the taxable capacities of the districts assessed. In 1156 these “aids” yielded £2100, with a further £100 still owing, while in 1159, according to Sir James Ramsay, the amount was well over £5000. On the latter occasion the “aids” were levied upon bishops, certain of the wealthier lords, clerical and lay, and Jews as well as upon the boroughs; amongst the biggest payments were those of the city of London £1000, Norwich £400, York, Lincoln, and Northampton 200 marks each, the Archbishop of York 500 marks, the Bishops of Durham, Winchester, and Lincoln a like amount, and the Abbot of St. Augustine’s, Canterbury, 220 marks. Two years later York again paid 200 marks, but Lincoln had risen and Norwich fallen to £200, and London escaped with 1000 marks.
By feudal custom Henry was entitled to call for an “aid” from his military tenants on the occasion of his eldest daughter’s marriage, and in 1168 he availed himself of this right, stretching his demands to include many persons outside the military classes, to whose contributions he had no just claim. The similar feudal “aid” for the knighting of his eldest son was never raised, as the young king was knighted at the time that he was in opposition to his father. Finally, in time of war the king could call for Scutage, a monetary composition in lieu of personal service with the army. The amounts demanded for Scutage varied from one to two marks for the knight’s fee, the larger sum being exactly equivalent to the wages of a “knight,” or man-at-arms, for forty days, the period for which the tenant of a knight’s fee was bound to serve. Scutage was called for in 1156 for the war with Geoffrey of Anjou, in 1159 for the Toulouse fiasco, when £2440 is said to have been paid, implying the commutation of the personal service due from 1830 knights, in 1161 and 1162 for war with France, in 1172 for the Irish expedition, and, finally, in 1175 for the projected expedition to Galloway. Whether the “assessment for the army in Wales,” raised in 1165, should be considered as a scutage is questionable; it appears to have been more of an irregular “aid.”
How far the exchequer officials of the period indulged in anticipatory estimates of revenue, framing their simple and elastic budgets thereon, cannot be said. Possibly the half-yearly provisional accounts rendered by the sheriffs at Easter enabled them to foresee whether additional taxation would be required to bring the revenue up to the required amount by Michaelmas. Possibly, on the other hand, extra taxation was put on whenever the balance in the treasury seemed to be getting low. But however this may have been, the annual revenue was kept by one means or another at a pretty constant level. Sir James Ramsay gives the totals alike for 1159, in which year nearly £8000 were raised by scutage and “aids,” and for 1169, when no extra taxation was levied, as approximately £20,000. In 1176 the sum actually paid into the treasury was £14,250, while something like £1750 had been spent by the accountants on the king’s behalf, giving a total of £16,000. To this have to be added the enormous sums extorted for breach of the Forest Law. The total of the fines inflicted on this score was £13,450, the New Forest accounting for over £2000 and the forests of Yorkshire £1600, Bedfordshire and Buckinghamshire, Wiltshire, Dorset and Somerset and Oxfordshire being all above £1000. But considerably less than half the sum demanded was paid at the time, and the total for the year may be estimated as between £5000 and £6000, bringing the revenue up to rather over £21,000.
The money collected by the sheriffs and other officials was accounted for every year at Michaelmas at the court of the exchequer. The exchequer (scaccarium) derived its name from the great table covered with a black chequered cloth on which the revenue accounts were set out by means of counters. It must be borne in mind that ability to read and write, though not yet considered as in itself entitling the possessor to “privilege of clergy,” was so far peculiar to the clergy that a large proportion of the lay sheriffs would have been unable to keep or to understand written accounts. Even for those more learned the difficulty of working out complicated sums in Roman numerals must have been considerable, and indeed it is comparatively rare to find any lengthy medieval account in which the sums of the items correspond throughout accurately with the totals given. At the treasury courts, therefore, of England and Normandy, and possibly elsewhere, an elaboration of the “abacus,” or calculating board, was introduced. This consisted of a table, ten feet long by five feet wide, covered with a black cloth on which were drawn seven vertical columns, representing, from right to left, pence, shillings, pounds, tens, hundreds, thousands, and tens of thousands of pounds. These columns in turn were divided by horizontal lines, cutting the cloth into a series of squares like those on a chess-board. Within these squares the accounts were set out with counters. At the Michaelmas session the chancellor, treasurer, and other officials, with their clerks, sat round three sides of the table, while on the other side was the calculating clerk with his counters, and near him the sheriff, who may be regarded as his opponent in the game. Along one line the calculator set out the amounts due from the accounting sheriff, and below it he gradually built up the sheriff’s account, beginning with the money paid in in cash and adding item by item the sums, expended, for which the sheriff produced either the king’s writs or tallies,[47] the sheriff’s object being to make the two amounts balance. In this manner, by ocular demonstration, a long and complicated account could be easily followed, while for permanent record all the items were entered upon their rolls by the clerks of the chancellor and treasurer.
The only coin in circulation in England at this time was the silver penny, and although sums of 12, 160, and 240 pence were spoken of as shillings, marks, and pounds for convenience of calculation, such units had no tangible existence and all money payments were made in pence. Although the money issued during Stephen’s reign was poorly executed, such coins as have survived do not bear out the chroniclers’ assertions that it was debased; but it is probable that the total amount of coin in circulation was small and that a considerable proportion of it was forged. In any case Henry had issued a new coinage in 1156, but the moneyers appear to have not infrequently debased the silver or made illegal profits in other ways, and in 1158 many of them had to stand their trial by the ordeal of water and several only escaped mutilation by the payment of heavy fines. Twenty years later, in 1177, we find what looks like an organised conspiracy of fraud amongst the Canterbury moneyers, five of their number being fined between them 2500 marks. At last, in 1180, Henry entrusted the re-organisation of the coinage to a foreigner, Philip Aymary, who did his work very well, but so manipulated the business to his own profit that he was banished in disgrace. This coinage, although possessing no particular artistic merit, was technically a great advance on its predecessor, and was so well appreciated that it continued to be struck, with hardly noticeable variations, under Richard and John and well into the reign of Henry III. As a result of forgery, fraud, and the inevitable loss of weight during circulation the 240 pence which constituted the nominal pound “by tale,” or by number, rarely corresponded to the standard pound by weight, and as many of the sheriffs’ county forms were due in “blanched” money, that is to say, in pounds of standard fineness and weight, it was necessary to test the money paid in. To begin with, pence to the value of forty-four shillings were counted out from the mass of money