THE ENGLISH STATE

When Henry II came to the throne in 1154, England was divided politically, as it had been since before the Norman Conquest, into local units and feudal units. Local units were villages (called vills), groups of villages (called hundreds), counties (shires), and towns.

Lords of the manor were themselves subject to, and tenants of, higher lords, in whose "seignorial courts" they could be judged; and the highest lords in turn were subject to, and tenants of, the chief lord-the king. William the Conqueror had, in effect, leased all the land of England to his tenants-in- chief on condition that they provide him with an army of about five thousand mounted knights; they, in turn, had leased much of their land to subtenants, on condition that each provide a certain number of such knights. Each knight was to serve for forty days a year, at his own expense. The duty to furnish knights went with the land, which was therefore said to be held in knight's service. The tenure, or "fee" (feod, feud, fief), could not be split up in such a way as to deprive the superior lord of his knight's service and other feudal "dues" ("incidents of tenure"). ⁴¹

Another dimension was added to the feudal system, however, by the very complex concept of the kingship. During the period from 1066 to 1154, the king's court (curia regis) was not only a feudal assembly of the king's tenants-in-chief; it also contained a group of royal officials who administered the affairs of the crown throughout the realm.

Prior to the reign of Henry II, however, these institutions -- the exche-

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quer, the chancery, the judiciary, and others_____ were in an embryonic stage. William the Conqueror

and his successors had substantially increased the central authority of the Crown, which reached vertically through vassals and subvassals down into the villages and manors, but the system of royal government and royal law still rested essentially on their own personal household control and on feudal loyalties. With the possible exception of the exchequer, there was no autonomous system of government departments such as existed in Roger II's Italian kingdom_______________________________________________________ no permanent

administrative, judicial, and legislative bodies that could operate by their own independent authority to regulate feudal and local problems. The king's justice could reach down to any man in certain types of cases of flagrant denial of justice as well as in certain types of cases affecting crown property, treason, and several other matters; but it was extraordinary justice, not regular pr ofessional justice administered by permanent courts.

With regard to adjudication of disputes, prior to the reign of Henry II there was no professional judiciary to hear the cases with which the executive writs dealt. In the first decades of the twelfth century, to be sure, Henry I had sent out perhaps a half-dozen justiciars to travel to various places in the realm and to do justice, and it may well be that some of them, at least, had had some professional legal training in the emerging canon law and possibly had even studied Roman law at Bologna. However, their task as justiciars was to handle not only judicial matters but also any other matters of government in which the king might be interested. They were sent out irregularly as representatives of the king for general administrative purposes, including the hearing and resolving of disputes. Moreover, most criminal and civil matters were within local or feudal, and not royal, jurisdiction; the crown stepped in when its own interests were directly involved or when there was a "denial of justice," that is, when a party appealed to the king for mercy because local or feudal justice had broken down.

The absence of a regular, permanent, professional royal judiciary was associated with the absence of the concept of the kingship as a regular legislative agency. Kings did occasionally issue laws, usually with the consent of the bishops, barons, and other leading men. But the entire legislation of the first four Anglo-Norman kings from 1066 to 1154 could probably be summarized in one page. Only a few laws are known to have been issued by William the Conqueror; no laws whatever have survived from the reign of his son William Rufus; from the thirty-five year reign of Henry I there survive references to only five laws; the nineteenyear reign of Stephen has left no traces of royal legislation. Clearly, English kings prior to Henry II did not consider it to be one of their responsibilities regularly to enact new laws.

The upheavals of Stephen's reign left no doubt that the Anglo­

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Norman kingship lacked the legal institutions needed to keep peace in England in the long run.

from the secular authorities. Prior to Stephen, three strong kings had been able to subdue these fo rces of division. Now a weaker king found himself helpless to control the situation. But it was not only his personal weakness that disabled Stephen. It was also a defect in the Anglo_Norman system of government, under which the king or his chief lieutenant had to march continually through the land with his armies in order to keep peace among his tenants and subtenants and to offer such protection as he could and would to the local population against oppression by their feudal lords.

It was out of this general background, and at the height of civil disorder, that Henry II came to the throne, not only determined to replace anarchy and violence by law and order but also willing to do so through political and legal institutions and concepts that had only been foreshadowed by his predecessors in England and Normandy. To be sure, Henry and his advisers relied on those foreshadowings. In the traditional spirit of Norman administration, they retained the old customs to the maximum extent possible in light of new needs and new policies. Henry's father, Geoffrey of Anjou, though not a Norman, had educated his son in that spirit, telling him expressly that he should not try to transplant the customs of Anjou and Normandy to England or the customs of England to Anjou and Normandy. ⁴² Henry sought to use preexisting Anglo-Saxon and Anglo-Norman institutions wherever he could do so to advantage. Nevertheless, the hallmark of Henry's reign was institutional innovation, not continuity with the past.

Moreover, although Henry's innovations had roots in the past, those roots are to be found not only in the Anglo-Saxon or Anglo-Norman experience (the ruling elite in England was very largely Norman and the languages of the court were Norman French and Latin) but also in the experience of other contemporary polities.

This is not to say that Henry II "copied" anything from elsewhere. Great statesmen rarely if ever copy other people's laws. It is only to say

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that what Henry did____ taken in its broad outline_____ was not uniquely "English," or even uniquely

Norman, but was part of a general historical development in twelfth_century Europe. It was uniquely Western, in the sense that it was part of the founding of the Western legal tradition and of the W estern type of state. Henry was well aware of the new concepts and forms of government and law that had developed in the church and in the Norman Kingdom of Sicily as well as in the new cities and town s of Europe. Although he did not copy them, there can be little doubt that he found them suggestive for his own purposes.

Henry transformed the system of public administration in England and Normandy by greatly increasing the functions and powers of permanent, professional, central governmental departments. Of these the most important were the treasury (exchequer), which administered taxation and finance, the high court (court of common pleas), which administered justice, and the chancery, which directed and coordinated the work of the other departments. This was roughly similar to what King Roger II had done in Sicily some decades earlier, which was similar, in turn, to what the papacy had done in Rome, probably in the wake of the First Crusade ( 1095).

The handling of finances in England and Normandy through the exchequer was clearly related to Sicilian experience. ⁴³ The main financial problems confronting the crown in England and Normandy were essentially the same as those that confronted the crown in Sicily: to establish a general system of taxation suitable to a centralized feudal polity (that is, one characterized by subinfeudation, with reservation of allegiance of subvassals to the monarch), together with appropriate methods of auditing returns furnished by feudal and other taxpayers to Crown officials in the localities. That there was Sicilian influence on English practice is highly probable, if only because of the striking example of Thomas Brown, who served as a baron of the dogano in Palermo for some decades between 1130 and 1154 and then, having fallen out of favor after the death of Roger II, went to England where he served as a baron of the exchequer for several more decades between 1154 and 1190. ⁴⁴ There may also have been important influences in the other direction, since English barons of the exchequer heard crown fiscal cases in the localities as early as the reign of Henry I.

The creation of a central royal bench of judges in England also paralleled developments in southern Italy. In both places, the process started with the occasional sending out of justices from the king's household to hear cases in the localities as well as to handle other royal matters. In England, despite the exceptional example of the exchequer, the professionalization and systematization of this practice was accomplished only under Henry II. Then for the first time the judicial functions of the itinerant justices became clearly distinguishable from

-443- their economic and administrative functions (which, however, they continued to exercise). Moreover, Henry II instituted for the first time a regular set of tours for a fixed set of justices. In 1176 six groups of three justices each were sent out to tour the country and hear all cases brought under the king's writ, provided they did not exceed a certain jurisdictional amount (half a knight's fee). The number of these "justices in eyre" ultimately rose to twenty. ( Eyre, pronounced "air," is the English translation of the Latin iter, or journey, which is the root of "itinerant.") In 1175, Henry had appointed three men to be judges in his own personal household court; and finally, in 1178, he appointed five persons "from his household" (de sua familia), two clergy and three laymen, to

"remain [in his court] to hear the people's complaints." 45 By 1180 this new bench, later called the Court of Common Pleas, was residing permanently at Westminster. The king continued also to judge in person as he traveled; in the early thirteenth century the task of judging before the king was allocated to professional judges, called the Court of King's Bench. (In time, the Court of King's B ench restricted its jurisdiction to felonies and to cases affecting the royal person, while other civil disputes ___________________ "common pleas"_______________ were decided by the Court of Common Pleas.) These two courts plus the Exchequer were the first permanent, central, professional royal courts of civil and criminal jurisdiction in England, and the second (after the Sicilian) in Europe. They represented an institutionalization of the royal function of adjudication a function which previous kings had for

the most part exercised only in special instances, "for great men and great causes." 46______________________________________________________________

The exchequer and the court of common pleas were two pillars of the new English state. They were supported by a third, the chancery, which (again, like its counterparts in Sicily and in Rome) had the power of the royal (in Rome, papal) seal. That meant that the chancellor could issue orders in the name of the king. His role was to direct and coordinate, through such orders, the work of all the other departments of government. Through writs and other kinds of formal documents, the chancery could not only initiate proceedings in the exchequer and the king's court but could also deal directly with barons, bishops, and other persons who participated in the government of the country at lower levels. The critical importance of the chancery in the development of the state -- in England as elsewhere in Europe -- was due to its combination of professional expertise with overall direction and coordination of the business of government. The chancery operated through a staff of expert clerks who, in Strayer's words, "developed and preserved regular administrative routines and carefully worded, consistent formulae for their letters." ⁴⁷ Government was, in this sense, "bureaucratized." Nevertheless -- and this has not been sufficiently emphasized -- it was the mission of this new secretariat to save government from a narrow depart­

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mentalism. None of the new bureaus of government, not even the judiciary, was to be free to go its own way without control by a superdepartment, the government itself, acting through its secretariat. Yet this secretariat was not the king, that is, not the whole kingship. It was the very nature of the chancery to identify the business of government as a distinct activity, separate from the person of the king and, by the same token, separate also from those aspects of crown business that were most closely identified with his person, especially the military and diplomatic aspects. Prior to the reign of Henry II, the English king (and Norman duke) had to be continually on the move within his territories, not only to maintain military and political control over his vassals but also to keep his government functioning. After the time of Henry II, the king-duke did not have to be present in order for his government to function. Richard the Lion Hearted, who succeeded Henry II, was absent from England for virtually the entire ten years of his reign, first on crusade and then in captivity, yet government in England went on as usual. It was headed, to be sure, not by the chancellor but by another official, called the justiciar (for six of the ten years the justiciar was Hubert Walter, who was also Archbishop of Canterbury and papal legate), but the chancery furnished the main administrative staff of the justiciar. In later times it was often the chancellor who ruled in the king's absence. More important, it was the chancellor who, when the king was present, carried out most of the royal function of directing and coordinating public administration.

The emerging concept of the state depended on the existence of an agency such as the chancery that would define public administration, the business of government, as something less than politics as a whole (represented by the person of the ruler) and as something more than the aggregate of individual government offices -- an agency, therefore, that would have sufficient acumen to understand and respond to overall policy and at the same time sufficient expertise to control the various specialized departments. Here again is an example of the scholastic dialectic in action. The papal chancery, as Strayer has said, "was far in advance and served to some extent as a model for others, but by the time of Henry II... the English chancery was not far behind... By the thirteenth century almost every European government had an effective chancery." ⁴⁸