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cessions to the barons, by providing that on the death of any baron who held lands of the king, the heir should redeem the land by a just and lawful relief, or payment of a fixed, in lieu of an indefinite and arbitrary sum of money; and he extended that advantage to those who held lands of the barons, in regard to the relief they were liable to pay to their lords. He also released the barons from certain money-payments and works, described by the words "gilda" and "opera;" and having thus relinquished the power of imposing such charges, he in effect surrendered the power of the Crown to impose taxes on the most opulent portion of its subjects without their consent. But the tenants of the king's demesnes were not by this charter exempted from liability to taxation by tallage; and the principal cities and boroughs, being part of his demesnes, derived from it no exemption from arbitrary taxation. There is in this charter a clause by which the king restores to the people the laws of King Edward, with such emendations as his father (the Conqueror) had made in them with the consent of his barons.1

When the purpose of issuing this charter was served, it fell into disuse; the grievances it pretended to redress were still continued; and the royal authority, in all those particulars, was again unrestrained. There is no proof that Henry ever convened any assembly for legislative purposes. Historians mention that the great men assembled to assist the King in his invasion of Normandy, when he defeated his brother Robert, and made him prisoner; and on another occasion, when the King required his subjects to swear allegiance to his daughter Matilda, as his successor; there is no record or proof of any legislative assembly.3

STEPHEN acquired the crown, in 1135, on the death of Henry I., by the treachery of the clergy and barons, who had sworn allegiance to Matilda. He issued two charters in the beginning of his reign, in the first of which he founds his title

1 Matthew Paris, p. 55. Peers' Report, vol. i. p. 38. 2 Peers' Report, vol. i. p. 38.

Peers' Report, vol. i. p. 36.

1135-1154.]

HENRY II.

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to the throne on election : " Dei gratiâ, assensu cleri et populi, in Regem Anglorum electus." The second charter contains a general confirmation of the charter of Henry. But the reign of Stephen was, almost from the beginning, a scene of tumult and trouble, and from the fourth year of his reign the accustomed assemblies of even the Curia Regis ceased. In such a reign it cannot be expected that constitutional law should have advanced. These disorders were at length mitigated by the convention between Stephen and Henry, Duke of Normandy, by which it was agreed that Stephen should enjoy the crown during his life, and that Henry, the son of Matilda by her second husband, Geoffrey Plantagenet, Earl of Anjou, should succeed to the throne, which, by the death of Stephen, he soon after did.'

HENRY THE SECOND, considered as the restorer of the Saxon dynasty, ascended the throne in 1154. He was a man of great abilities; and he made some important changes, in the general law of the realm, and in the administration of justice. But the distinguishing feature of his reign is the contest which arose between the lay and ecclesiastical powers, between the king and the clergy. The lay and ecclesiastical jurisdictions,—which under the Saxon government were peaceably combined in the same courts, where the bishop and earl sat together to administer civil and ecclesiastical justice,-had, since the Conquest, become completely separated; and the clergy held themselves in no case amenable to any but ecclesiastical authority.2 They were backed in their repudiation of lay authority by the

1 Peers' Report, vol. i. p. 42. “Under the turbulent and miserable reign of Stephen, neither government nor law existed in England. The realm was entirely given up to violence: every powerful man built his castle, which became a den of robbers; the towns and the open country, the clergy and the peasantry, all suffered equally from spoil and rapine; pestilence and famine swept away the people, and the labours of agriculture were abandoned in despair. Such things (continue the Monks of Peterborough) did we suffer for nineteen years for our sins." (Saxon Chronicle, A.D. 1137.)

* Peers' Report, vol. i. p. 42.

power of the Pope, which was now at its height. The Popes, by their legates, presided in all ecclesiastical councils; they were appealed to in all controversies concerning religion or church discipline; and they maintained the pretended rights of the Church, against what they designated as the usurpations of kings and princes.1

The separation of the clergy from the laity in the same. commonwealth produced evil consequences, by removing from the sovereign power a large and influential body of men. Henry resolved to repress these clerical distinctions, and to bring the clergy under the law of the land; exemption from which was carried so far as to shield them from punishment for crimes, even of the deepest dye. To assist him in his scheme, he raised up the celebrated Thomas à Becket to be Archbishop of Canterbury, and Primate of England; expecting from his gratitude and his loyalty full co-operation in carrying out the design. A-Becket was the first native archbishop since the Conquest, but he was no sooner elevated to the dignity of primate, and possessed of the power and influence of that high office, than all his submissiveness ceased, and he became the chief, if not indeed finally the only opponent of the purposes of the king.2 This contest produced the CONSTITUTIONS OF CLARENDON: they were made in an assembly of the archbishops, bishops, and clergy, and the earls, barons, and proceress of the kingdom, convened by King Henry at his palace or manor of Clarendon, in Wiltshire, in the year 1164, and the tenth year of his reign. These ordinances are sixteen in number: they are in the form of a declaration and recognition of the prerogatives of the king, which the archbishops and clergy engaged to hold and observe. So far as these ordinances

1 Mosheim's Ecclesiastical History, vol. ii. p. 403.

2 See Littleton's Henry II., vol. ii. book 3, p. 354.

3 The proceres regni' are supposed to include the justiciar, chancellor, justices, and other officers of the king, who appeared to have been always considered as (official) members of the Great Council. (Peers' Report, vol. i. p. 46.)

1154-1189.] CONSTITUTIONS OF CLARENDON.

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have left their traces on the constitution of the present day, they provided that all suits concerning the advowsons of churches, and all clerks accused of crime, should be prosecuted in the civil courts; and they mitigated the power of excommunication and prosecution in ecclesiastical courts, possessed by the clergy. They enacted that all appeals in spiritual cases should be carried, after their passage through the successive ecclesiastical courts, to the king; and should be carried no further, (in other words, to the Pope of Rome,) without his consent. They provided that the archbishops, bishops, and other spiritual dignitaries, should be regarded as barons of the realm, and be subjected to the duties belonging to their rank; and they were required, like other barons, to attend the Curia Regis, until the court exercising criminal jurisdiction should proceed to judgment of loss of limb, or death. They also provided that the revenue of vacant sees should belong to the king; that the chapter, or such of them as he pleased to summon, should sit in the king's chapel till they made a new election to supply a vacancy, with his consent; that the bishops elect should do homage to the Crown; that the clergy should no longer pretend to the right of enforcing payment of debts contracted by oath or promise; and should leave their lawsuits, equally with others, to the civil courts.1

Notwithstanding Henry's subsequent difficulties with the Pope and his legates, which arose out of the murder of Thomas à Becket, he contrived to maintain the Constitutions of Clarendon in force during his life; and, with the advice or assistance of his justiciary Glanvil, he made many new laws, by which he modified or changed the AngloSaxon jurisprudence, and acquired the reputation of being the founder of the Common Law. He enacted severe laws against robbery, murder, false coining, and arson; and ordained that these crimes should be punished by amputation of the right foot. Pecuniary commutation for crimes

Brady's History of England (1685), Appendix, p. 382. Hume's History, vol. i. ch. 8.

was thus in effect abolished; and Henry discouraged, although he did not supersede, trials by ordeal, and duel or battle, which had been introduced by the Conqueror. He admitted the accused to challenge a trial by an assize or jury of twelve freeholders. He divided the kingdom into four circuits or districts, and appointed itinerant justices to travel the circuits, and to hold courts within them for the decision of suits. These justices were invested with great power and authority; they determined pleas of the crown, and common pleas, in like manner as the justices of the Curia Regis; they also assessed tallages and aids upon the king's demesnes. To curb the oppressions of the barons, and to remove the obstacles which they opposed to the administration of justice, the King caused their castles to be demolished. He also made a very important change in military tenures, by commuting the military ser vice of the barons for money; which, under the names of escuage, scutage, or shield-money, was levied on the baronies and knights'-fees, in lieu of the render of knights and men. He took advantage of the zeal for the Crusades to levy a tax on the movable or personal property of his subjects, nobles as well as commoners, and clergy as well as laity ;and thus laid down a precedent of equal taxation, which be came a fundamental principle of the constitution.

This prince subdued Ireland, and annexed it to the English crown, his title being confirmed by grant from the Pope. So dreaded was the power of the Pope to excommunicate princes, that even this high-spirited monarch, for the

1 "Although Henry II. was not, in strictness, the inventor of the legal constitution which succeeded to the Anglo-Saxon polity, yet 'trial by the country' owes its stability, if not its origin, to his jurisprudence.” (Palgrave's Commonwealth, vol. i. p. 243.) Lord Littleton writes, "The first introduction of trial by jury, in causes relating to the title of land, which before had been tried by duel, is ascribed to Henry II., and may well be esteemed a principal glory of his reign." (Life of Henry II., vol. iii. p. 234.)

2 Madox's Exchequer, vol. i. pp. 122-125.

3 Brady's History, p. 344. Hume's History, vol. i. ch. 9.

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