CHAPTER VII

ENGLAND UNDER NORMANS AND PLANTAGENETS. 1066-1307

THE whole Anglo-Saxon period of English history was marked, as we have seen, by a long struggle for national unity, unsuccessful because of the lack of a strong central government. The inveterate Teutonic tendency to split up into little warring, independent states, proved too strong for the increasing power of native kings and of the Christian Church, and required the strong arm of a foreign conqueror and a succession of despotic rulers, resolute to enforce law and order in their dominions, before the people of England could become a united nation. Such a government England obtained in her Norman kings, who succeeded, during the next century and a half, in building up, with the aid of the common people, a strong, united kingdom. Suddenly, in the reign of John, we find that the Normans had become Englishmen, the English had become united. This great work of nation building was accomplished mainly through the unification and enforcement of more equal law (mostly criminal), by the extension of the king's peace and royal justice over all the land. The problem, in the words of Henry II., was how to make "all men equal under one strong law." First the feudal nobility, then the king himself, then the Christian Church, had to be curbed and brought under this law the mould in which a strong nation, a free people and a constitutional kingship were run. It was no easy problem this; and the great game required many moves and many curious combinations of attack and defence, before the king was checkmated and the people won. But not the

commons only; for in the long struggle, the clashing factions were united into a great, free nation; the vanquished found themselves the victors, and the beaten king was more powerful as a constitutional monarch than any of his despotic ancestors, for he could rely on the support of all his people, now that "that which touches all has become the concern of all," under more equal law, more equal justice and representative, parliamentary government.

From the conquest of England (1066) to the loss of Normandy (1205), the chief constitutional fact was the union of king and people against the feudal nobility. The long conflict meant the extension and enforcement of a true criminal law, among men who had hitherto been, in large part, a law unto themselves and their dependents, because social justice could not reach so far. To secure military efficiency and some degree of order and stability, feudalism, with its multitude of petty tyrants, was a social necessity upon the continent of Europe. Even high-handed misrule was far better than anarchy, when anarchy meant destruction. But in England the time was come for better things—a time when all the clashing forms of private half-justice and tribal legalcustom should be gathered up and united into one common law, enforced over all the land by the might of king and people. From the very first Anglo-Saxon penal law was aristocratic in its tendencies. "Not only did it consecrate the barriers between classes, making a distinction between those who were dearly born' and those who were 'cheaply born,' but it raised those barriers by impoverishing the poorer folk." It taught all men to consider justice as a means of revenue for the individual and for the state, so that no one thought of giving justice for nothing; and it set a price upon almost everything. The laws were very fragmentary, and the various tariffs clashed. The free people 1 Maitland and Pollock, ii, 458.

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148

The Nation's Greatest Need

were themselves the judges and could administer only a simple, unprogressive customary law, which became more and more unfitted to meet the complex requirements of more active Norman times. "The great need" of England, after the Conquest, was undoubtedly (as Maitland states) that the ancient system of money compositions, bót and wer and wite, should give way before a system of true punishments.' Tort must be changed into crime, for the social welfare so demanded. This change, in its historic setting, meant the unification and enforcement of a strong criminal law over all classes; it meant in great measure the building of the nation; it meant also the rapid increase of crime and criminals. In the process we shall find the ancient rights and liberties of Englishmen preserved, strengthened, amplified. This is how it happened.

William the Norman was undoubtedly a dictator, but he was a dictator under constitutional forms. He came to England as the legitimate successor to the throne. Though a usurper, he had himself elected and crowned king by the Witan, after the death of Harold, and took the kingly oath to preserve and maintain the laws and liberties of the English people. But he had other and weighty reasons for maintaining local self-government and the judicial and penal authority of the people's courts. Normandy was a feudal principality. England was but half feudalized. William wished to secure for his new kingdom the military strength and centralized authority of the feudal system, while avoiding its chief danger—already painfully apparent to him in Normandy-the massing of too great power in the hands of the leading feudatories. While abundantly rewarding all his followers, he yet scattered the estates of his greater barons throughout England, thus largely limiting their power. Also, he sought the support of the people, appearing as their de1 Maitland and Pollock, i, 51.

fender against the rapacity of the Norman nobility, and maintaining the jurisdiction of the old courts-the hundred and the shire-with their time-honored laws and customs of selfgovernment. He maintained likewise the old English yeomanry, the fyrd or national militia,' made it dependent upon his summons, and caused every householder in England to swear loyalty to him personally, as against any other lord whatsoever. In this way he preserved the roots of popular liberty, and gained for himself and his successors the strong support of the people in the long hundred-years struggle to curb the Norman baronage, a struggle ending in the almost complete destruction of the old nobility.

For the first time England had secured a really strong and stable central government. What the people loved in their Norman kings was the good peace they made in the land; a peace unexampled elsewhere, allowing agriculture and industry to thrive as they had never done before, and making England a storehouse from which the distracted nations of Europe purchased the necessaries of life. Under AngloSaxon rulers the protection of the king's peace had been either local or temporary. William I. extended his peace to all his subjects, English as well as French, and this protection meant far more than of old, for William put down the robber, murderer and ravisher with a strong hand. Such security had never been known in England as during his latter years of peaceful reign, and "as the stern avenger of crime, even the conquered learned to bless him." In the words of the old chronicle: "No man durst slay other man, had he never so mickle evil done to the other." "Stark he was to those who withstood his will, but he was mild to the good men who loved God." And it passed into a proverb that a man "who in himself was aught" (i. e., who had any confidence

'Traill, i, 235

1 Freeman, ii, 170; and Anglo-Saxon Chronicle, Anno 1087.

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William the Conqueror

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in his own manhood) "might go in safety through William's realm with his bosom full of gold." Royal justice was, however, the exception during all the Norman period. The Conqueror kept his oath to maintain "the good laws of Edward the Confessor," and these old customs of the English were promulgated and confirmed many times by his descendants, and enforced, as formerly, by the people, through the local courts of the hundred and the shire, whether communal or seigniorial. Probably the Normans brought with them to England but few crystallized legal ideas and institutions. "Written laws they had none." After the Conquest, William introduced the celebrated murdrum, or murder fine; for the lives of his followers must be protected, and if the community could not produce the man-slayer, it must itself be held responsible and pay the fine. This was called the law of Englishry. Every man found murdered was considered a Frenchman till the contrary was proved: a presumption very advantageous to the king's exchequer, and showing the strong tendency to make money out of justice in those days. But there was surprisingly little new legislation of any kind. Under William Rufus there were no new laws, but he repressed the feudal nobility as sternly as did his father, and when they rebelled against him, owed his crown to the valor of the conquered English.3 In this reign the "race of feudal lawyers" begins "to creep into light." Later on we shall watch them modifying antiquated laws to meet new needs.

Despite the many crimes and vices of Henry I., "the Lion of Justice," he is described by impartial men and eyewitnesses as "the almost perfect model of a king." Why? He was a despot, doing good, and just what England needed. In his hands the sword of justice was sharp, and it

'Anglo-Saxon Chronicle, Anno 1087.

2 Traill, i, 275; Maitland and Pollock, i, 72–3. 'Anglo-Saxon Chronicle, Anno 1088.