LEGISLATION OF HENRY II.] ENGLAND 307
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till, fifty years Later, the time came when it had to be again asserted on the field of battle. No time is richer than this in legal history. The whole reign of Henry II. was a reign of legislation, and the work was not interrupted even during the time of the great struggle with the archbishop. In the year before the promotion of Thomas to the primacy, king and chancellor had dealt one direct blow at all feudal ideas. In the war of Toulouse the scutage was first devised ; a money payment was accepted instead of personal military service. The money was of course spent in hiring mercenaries ; and it was largely by the help of mercenaries that Henry subdued his rebels in England. But later in his reign, by the Assize of Arms (1181), he regulated the old constitutional force of the country, and enjoined that every free Englishman should be ready to serve with the weapons belonging to his rank. Other incidental notices show us that much legislation was done while Henry still had Thomas to his minister. But the ordinances of which the text is preserved belong to a later time. The reign of Henry is rich in charters to boroughs, several of which are early enough in his reign to bear the signature of chancellor Thomas. And a reference in the Constitutions of Clarendon shows that, thus early in his reign, Henry had begun that great step towards the development of jury trial which is one of the special marks of his reign. By the work of Henry and his chancellor the system of recognition was organized, by which sworn men gave a verdict, but as yet a verdict given from their own know ledge. The great legal writer of Henry s reign, thejusticiar Randoif of Glauville, speaks of the recognition as a special gift of Henry to his people, and enlarges on its superiority to the wager of battle. All this comes within the chancellorship of Thomas; and we shall do the chancellor great injustice, if we think wholly of his later ecclesiastical character, and forget his services in the days when he was the chief minister of one of our greatest kings. Of the extant ordinances of Henry s reign, the oldest after the charter issued at his coronation are the Constitutions of Clarendon themselves (1164). The Assize of Clarendon a wholly distinct document (1166) and the Inquest of Sheriffs (1170) came during the time of the quarrel with Thomas. On these, after the death of Thomas, follows in 1176 the Assize of Northampton, in 1181 the Assize of Arms, and in 1184 the Assize of the Forest. All these bear witness to Henry s care, even when he was most occupied with other matters, to preserve the peace of the land, and to enable all his subjects to have justice done to them in the king s name. And in all, the mode of inquisi tion by the oath of twelve lawful men grows at each step The Assizes of Clarendon and Northampton have a special reference to one of Henry s great measures, that by which the visitation of the country by itinerant judges going regu lar circuits was finally established. It was not an invention of his own ; the visits of the king s judges had begun to take a regular shape under Henry I. But it was Henry II. who organized the whole system afresh after the anarchy. It was he who finally established the specially English principle that justice should be administered in different parts of the kingdom by judges not belonging to the particular district, but immediately commissioned by the king. When the king s judges came and received the inquisitions of the local jurors, though the complete modern ideal of a judge and jury had not been reached, yet some thing had been reached which could grow into that ideal without, any one moment of change so great as the changes wrought by Henry himself. By him the jury was applied to all manner of purposes. The Assize of Arms was distinctly a return to the old military system. It gave a new life to , the ancient militia, which had never gone out of use, but which had been overshadowed by feudal levies on the one hand and by the use of mercenaries on the other. Each man was to have the arms which befitted the amount of his property. It was by a jury that the liability of each man to be ranked in such or such a class was to be fixed. Even in the Assize of the Forest, an ordinance framed to protect the most exceptional and most oppressive of all the royal rights, the popular element comes in. Sworn knights are appointed in each shire to protect those rights. Lastly, when in 1188 the tithe was levied for the defence of Eastern Christendom against Saladiu, the liability of each man to the impost was assessed by a local jury. In all these ways the appeal to the oath of lawful men, as opposed to any other form of finding out truth, was strengthened by every step in the legislation of Henry. Meanwhile the administrative system which had been Henry s growing up ever since the Conquest took firm root under admini- Henry. We have a contemporary picture of it, drawn by stn * tive one of Henry s own officials, in the Dialogus de Scaccaiio. This was the work of Richard, treasurer of ihs exchequer and bishop of London, one of the family of officials founded by Roger of Salisbury. Alongside of this, we have our first strictly legal treatise, as distinguished from private compilations and codes, in the work of the great justiciar Randoif of Glanville. In short, we may say that under Henry the legal system of England took a shape which it has practically kept ever since. The endless changes of the last seven hundred years are rather special amendments of Henry s work than anythiug which can be said to start altogether afresh from a new point. Strictly constitutional advance rather belongs to the reigns of Henry s sons than to that of Henry himself. Nor is this wonderful. Consti tutional advance commonly means the lessening of the royal power, and acts which lessen the royal power do not often issue from the free will of kings In Henry s time, above all, a time when law and order had to be restored after the reign of anarchy, the momentary need was rather to strengthen the royal power than to lessen it. Legil reforms are often, as in this case, the free gift of wise kings ; constitutional reforms liave commonly to be wrested from weak or wicked kings. But the legal reforms of Henry supplied an element which largely entered int-j the constitutional reforms of the next stage. Out of Henry s favourite institution of recognitions on oath grew, not only trial by jury, but also the House of Commons. By the time of Henry II. the force of circumstances, Begin- especially the working of the practice of summons, had nings of gradually changed the ancient assembly of the whole nation re P rese . !I into a mere gathering of the great men of the realm. The i:, work which had now to be done, and which, in the space of n ient. about a hundred years, was gradually done by a number of instruments, conscious and unconscious, was to call into being a second and more popular assembly alongside of the assembly which had lost its popular character. To use language which belongs to a somewhat later time than that with which we are now dealing, the House of Lords already existed ; the House of Commons had to be called into being alongside of it. The details of this great process of con stitutional growth must be drawn out by the strictly con stitutional historian. All that can be done here is to call attention to the main lines of the process and to its more remarkable landmarks. And it may be well from the very beginning to give the warning tliat the two Houses of the English Parliament did not arise out of any theoretical preference for two houses over one or three. The number was fixed, like everything else in English history, by what we are apt to call circumstances or accidents. Our whole parliamentary system was eminently one which was not made, but grew. Thus, for instance, it was only gradually
established that the barons should be personally summoned