Henry II inherited a very different realm from that seized by Stephen nineteen years earlier. Royal revenue was down by two-thirds; royal lands, together with castles and sheriffdoms, had been granted away, often in hereditary right; earldoms, often with semi-regal powers, had proliferated; control over the church had been shaken; the former royal bastions in south Wales had passed into the hands of barons and native rulers; and the far north of England was now subject to the king of Scots. The picture was much the same in Normandy, where Geoffrey of Anjou had alienated extensive ducal land in his struggle for the duchy and had also (as the price for his support) conceded Gisors and the Norman Vexin to King Louis.
England and Normandy were now part of a much larger political entity which historians often call (without any precise constitutional meaning) ‘the Angevin empire’. Its ruling dynasty came from Anjou, Henry having inherited Anjou, with its satellites of Maine and Touraine, from his father. He had also gained the duchy of Aquitaine by his marriage. No Anglo-Angevin or Anglo-Aquitainean nobility ever developed to equal the Anglo-Norman. But the kings of England now had far wider preoccupations than ever before. Might not that militate against any recovery of royal authority in England, leaving it truncated in the north and fragmented into a collection of earldoms? In fact nothing like this happened. Henry restored royal authority in England and fashioned the common law. He subjected Scotland and conquered Ireland. Across the Channel he rebuilt ducal power in Normandy and established his lordship over Brittany.
These extraordinary successes owed everything to Henry himself. He was domineering, passionate, wily and highly intelligent, speaking Latin and French and understanding English. He had a sure grasp of the facts of power: ‘No, I can’t depose a bishop,’ he cried, ‘but I can certainly push him out,’ making a gesture with his hands at which his courtiers dutifully dissolved into laughter. Henry had an agile, stocky body, a large head and fine face. Often ‘crucified with anxiety’ over crises in his dominions, in the words of his clerk, Roger of Howden, his speed of movement was legendary: ‘The king of England is now in Ireland, now in England, now in Normandy, he seems rather to fly than to go by horse or ship,’ exclaimed Louis VII. No wonder Henry relaxed in long days of hunting and preferred sometimes to dine apart. The determination to restore his authority in England and Normandy to the heights achieved under his grandfather, Henry I, was a leitmotiv of Henry’s rule. He was equally concerned to preserve law and order. Henry had a strong sense of ‘the general care of his subjects given him by God’, as the Dialogue of the Exchequer put it. Indeed, the duty imposed on him by the Coronation Oath to govern and protect his people was his stated reason for refusing to crusade. But Henry was far more than simply a conservative restorer. Whereas Henry I decided against exploiting potential rights in Maine and north Wales, Henry II pushed his rights to their limits and beyond. In Ireland he conquered where he had no rights at all. Thus to Jordan Fantosme, a clerk of Bishop Henry of Winchester, he seemed the greatest conqueror since Moses, Charlemagne only excepted.
What role was there for the wife of this bully with brains and brawn, that figure of legend and romance, Eleanor of Aquitaine? In terms of personality Eleanor was easily her husband’s equal. She was fiery, courageous, resourceful and – so the rumours went – flirtatious: far too hot for the dull, conventional Louis VII to handle. That, and the failure to beget male heirs, was the reason for the divorce (see above, p. 188). She too was physically strong and though a decade older than Henry and subject to numerous pregnancies outlived him by fifteen years. Eleanor had brought her own inheritance to the marriage, the whole of Aquitaine. Henry at once assumed the ducal title but accepted that the duchy remained in some ways Eleanor’s rather than his own: he made no mention of it in his will. In Poitou, the northern half of the duchy and the home of her dynasty, Eleanor at times held her own court where she patronized poets (her grandfather had been a famous troubadour) and, so those poets liked to imagine, debated issues of courtly love. Eleanor’s dynastic interests in Poitou were central to her politics. In England, her position was in one way significantly different from that of her predecessors since before the Conquest. She was not given substantial lands by Henry, being supported instead, when she was in the country, by ad hoc cash payments (‘corrodies’) from the sheriffs. Since this set a precedent queenship, potentially at least, had been significantly weakened. Yet there was no intention here to diminish Eleanor. Royal land was in short supply and she had her own abundant resources from Aquitaine. Like Matilda, wife of Henry I, Eleanor acted as regent and was far more than a mere figurehead. And then there were Eleanor’s children. Four sons and three daughters survived beyond infancy and she played a major part in their upbringing. Through them too she gained a political role.
Eleanor thus had many potential avenues to power, and she was anxious to parade down them. Yet it was only after Henry’s death, as queen mother, that she did so in full state. Her role before that depended on the space Henry allowed her, which in the later part of his reign was none at all.
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‘There is nothing left to send to bring the king back to England but the Tower of London.’ It was easy to see the joke, recorded by the dean of St Paul’s, Ralph of Diss. Henry spent 43 per cent of his reign in Normandy, 20 per cent elsewhere in France (mostly in Anjou, Maine and Touraine) and only 37 per cent in Britain. This was not because Henry undervalued his kingdom. It supplied ‘the honour and reverence of the royal name’, as Richard of Poitiers put it, and a major part of his revenues. Yet the pressures and the opportunities remained greater across the Channel.
In Normandy Henry quickly restored order and recovered ducal rights, yet he rarely felt secure. In part this was because of a paradox in the political structure he had created. He possessed far wider dominions than his predecessors, but far more than they, he recognized the over-lordship of the king of France. Henry I had never performed personal homage to the French king. Henry II did so on several occasions, the first, as crowned king, in 1156. His motives were pragmatic; in 1156 they were to shut out his brother Geoffrey, who had claims to a share of the Angevin dominions. But the result was that Henry was now restricted by the oath of loyalty he had sworn, and punishable by forfeiture of his fiefs for its breach. Under his son John, that is exactly what happened.
Henry’s dominions also lacked defensible frontiers. The great rivers from which their prosperity stemmed all flowed into (and sometimes from) ‘enemy territory’. In the north, Henry in 1160 managed to recover Gisors and the Norman Vexin, and thus restore the traditional frontier with the French royal demesne along the Epte, but Louis continued to resent their loss. He was amiable and peace-loving yet knew how to exploit Henry’s weaknesses. Henry’s reaction to these problems was the reverse of defensive. The counts of Anjou indeed had always been acquisitors, gaining Maine, Touraine and ultimately Normandy. Henry was born in Le Mans and it remained his favourite city. In its outskirts he built the hospital whose ranging, spacious three-aisled hall still reflects his expansive, self-confident character. Buoyed up by his early success in England and Normandy, Henry moved against Toulouse. He could claim the county in right of his wife, for Eleanor was the granddaughter of Count William IV who had died in 1093. Louis himself had tried to assert Eleanor’s rights in 1141 with total lack of success. If Henry succeeded he would hold all the south of France. With an army enlarged with men from all his dominions, in 1159 he invaded the province only to duck a direct assault on his overlord, Louis VII, who was standing shoulder to shoulder with Count Raymond in Toulouse itself, a first indication of the importance of the 1156 homage.
The failure of the 1159 campaign, the greatest defeat of his career, changed Henry’s attitude to the south of his dominions. In 1170 he betrothed his daughter Eleanor to Alfonso VIII of Castile and apparently promised their descendants possession of Gascony after Eleanor of Aquitaine’s death. With its great vineyards the duchy was wealthy, but ducal lands were exiguous and it was not till the late thirteenth century that the customs on wine exported from Bordeaux made the revenues substantial. In Poitou, the northern half of the duchy, authority could be exercised from ducal castles, but there were also powerful noble families (Lusignan, Thouars, Parthenay, and the counts of Angoulême and La Marche) who held their fiefs in virtual independence. Eventually Henry installed his son Richard in Poitou as count with his mother alongside him. Henry’s own itinerary largely centred on Normandy, Maine and Anjou. Normandy, in terms of revenues, was by far the most valuable of his continental possessions, and to its east lay the duchy of Brittany. Here Henry remained aggressive. In 1166 he married his second son Geoffrey, then aged seven, to Constance, daughter of Count Conan IV of Brittany. He then forced Conan into retirement and took possession of the duchy in right of his son and daughter-in-law. He had thus converted the overlordship over Brittany, long claimed by the Norman dukes, into its actual possession. The acquisition was hardly trouble free. Henry campaigned in Brittany in 1167, 1168 and 1173. In 1168 he also put down a revolt in Poitou. These and other continental preoccupations meant that Henry was out of England between 1158 and 1163, and 1166 and 1170. However, Henry had not neglected England. Indeed everything else had depended on his success in rebuilding royal authority there.
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Looking back from the perspective of the 1190s, the chronicler William of Newburgh marvelled at the way Henry at the start of his reign had restored unity to a kingdom ‘mutilated’ by the loss of royal lands and the overrunning of its frontiers. This success revolved around a series of spectacular and high-risk assaults on leading magnates, assaults which deprived them of royal demesnes, counties, castles and earldoms. At the start of his reign Henry I had broken the Bellêmes; Stephen at the start of his had tamely released the garrison of Exeter castle. Henry II knew whose example to follow. In 1155 he marched to the north and destroyed the semi-regal position which William, count of Aumale, had enjoyed in Yorkshire. He then wrested the royal castle of Bridgnorth from Hugh de Mortimer and denied Walter, brother of Roger, earl of Hereford, who had died in October 1155, succession to both the earldom and the royal castles of Gloucester and Hereford – one of several baronial deaths which cleared the way for Henry in these early years. In 1157, having returned from quashing his brother Geoffrey’s revolt in Anjou, he forced William, King Stephen’s son, to surrender the castles of Norwich, Pevensey, Eye and Lancaster, all this in clear breach of the Treaty of Winchester. In the same year he also made King Malcolm of Scotland surrender Newcastle upon Tyne, Bamburgh and Carlisle and all his possessions in the north of England, thus restoring the old frontier along the Tweed and the Solway, while breaking the promises he had made to King David in 1147. The kingdom was whole once more.
All this was part of a wider policy of resuming royal lands which had been alienated during the civil war. Here the terms of the peace settlement gave Henry some support (see above, p. 189), and he had other arguments ready. In 1157 he furiously rebuked the bishop of Chichester for seeming to challenge the inherited and God-given majesty, dignity and rights of the crown. The concept of the incorporeal crown, to which rights and possessions attached (as opposed to them being attached to the person of an individual king), had come to prominence under Henry I. The ‘pleas of the crown’ are mentioned in the pipe roll of 1130, its lands and castles in the peace of 1153. At his coronation Henry II quite probably took an additional oath which bound him to maintain and recover the crown’s possessions, an undertaking perhaps modelled on a similar promise made by bishops at their consecration with regard to the estates of their churches. Certainly at the start of his reign Henry mounted an inquiry into the lands possessed by his predecessors down to 1135, and commanded those alienated under Stephen (worth at least £3,000) to be surrendered. Charters of Stephen were now considered invalid and even those of the Empress and of Henry himself before his accession deemed subject to review.
Henry in this early period completed the expulsion of foreign mercenaries and the demolition of unlicensed castles which Stephen had begun. He also erased the memory of the baronial coinages by issuing in 1158 a penny with a new cross and crosslet design. Forgoing the revenue from the frequent changes of design customary in the past, he continued to mint this penny down to 1180, a deliberate mark of stability. Henry had also to cope with the numerous private disputes which were the stuff of anarchy and which had generated so much violence and disorder. The peace treaty had promised restoration of their inheritances to those who had lost them to ‘invaders’ during Stephen’s reign, a stipulation which threatened a nightmare scenario of claim and counter-claim (see above, p. 189). In part Henry dealt with the problem through his general measures to maintain law and order, and facilitate litigation over land (this will be discussed later). A series of ad hoc settlements also took place, sometimes private, sometimes brokered or imposed by the king. Henry himself gave Weobley to the Lacys, ending the longstanding dispute with the family of Miles of Gloucester. He conceded the earldom of Lincoln to neither of the rival claimants (William de Roumare and Gilbert de Gant) and twisted and turned over the earldom of Huntingdon (claimed by Simon de Senlis and the kings of Scotland). Several of these cases, like that over Lincoln, flared up again in John’s reign, amid claims that Henry had acted unjustly and without judgement. The key fact was that Henry’s restoration of royal authority made him powerful enough to keep the lid on this simmering pot (excepting the rebellion of 1173–4).
This success was partly because after reasserting royal authority on his accession, Henry did not then relax. Of the castles he acquired in the 1150s he retained thirty, beginning the process which converted 225 baronial and 49 royal castles of 1154 into 179 baronial and 93 royal castles of 1214, a shift in ratio of 5:1 to 2:1. Over the reign as a whole, Henry expended some £21,500 on castle-building, an average of £650 a year. The great square keep at Dover with two lines of curtain walls is his creation. As Allen Brown put it, Henry ‘literally dug himself in’. The royal lands which he recovered at the start of his reign he quickly granted as rewards to his own supporters, but thereafter grants of royal demesne virtually ceased, in striking contrast to the methods of Stephen and indeed of Henry I. The value of alienated royal land stood at around £3,000 in 1159 and at much the same sum thirty years later. This was closely linked to a ruthless and retentive attitude to forfeitures and escheats. In the 1180s there were thirteen baronies in the king’s hands with lands worth some £2,900 a year.
The danger of much of England falling into the hands of earls wielding near royal powers in the counties was also over. Since Henry created no new earldoms, their numbers steadily declined. According to one calculation there were twenty-four in 1154 and twelve in 1189. Apart from Chester, moreover, earldoms were no longer linked to the possession of a large slice of the king’s rights in the county. Most of them were largely titular, as had sometimes been the case in earlier times. The chief local government official was once again the sheriff and here too Henry repeatedly demonstrated his authority. At Michaelmas 1155 the sheriffs of two-thirds of the counties were replaced; in 1162 another sweep covered roughly half the counties; and then in 1170 Henry mounted a major inquiry (the ‘Inquest of Sheriffs’) into the sheriffs’ activities, after which nearly all were sacked. Henry had no objection to the right magnates holding sheriffdoms (they were anyway often curiales) but he also employed county knights and, especially after 1170, knights of the royal household, some of whom (like William Brewer and Geoffrey fitz Peter) were beginning spectacular careers in the royal service.
Henry also revived the workings of royal forest law, which had lapsed in many areas during Stephen’s reign. Henry’s agent here was his chief forester, ‘the odious’ Alan de Neville. The whole exercise was highly unpopular because forest law was concerned much more with making money than protecting actual hunting, and it ran not merely in the king’s own demesne woods but also in woods and lands held by numerous private individuals. Indeed it embraced most of Essex. Offences under the law included waste (created by cutting down trees for timber or firewood), assart (clearances to create new arable land), and purpresture (making of enclosures), all of which were punishable by fines. Consequently those unlucky enough to find their own woods within the royal forest, whether bishops, abbots, barons, knights, or freeholders, were prevented from exploiting them, a restriction all the more vexatious given the pressure on land created by the rising population. There were also offences against the protected beasts of the forest, namely deer and wild boar, and here punishment for the poor might be death or mutilation. All punishments were anyway entirely a matter of the king’s will. Forest law as here defined was probably introduced by the Conqueror, but the areas subject to it were evidently expanded by Henry I because Stephen in 1136 promised to abandon his predecessor’s afforestations. Whether Henry II simply restored the forest boundaries to their 1135 state or went beyond them became a matter of intense dispute. Certainly by the end of the reign parts of more than twenty counties were subject to forest law. From 1166 onwards Alan de Neville headed visitations of forest judges who heard the offences and imposed penalties, a lucrative and deeply resented exercise.
Restoration of royal authority in the localities was impossible without strong central institutions, something also required by a cross-Channel state, now more far-flung than before. The ultimate centre was, of course, Henry’s court and household. Within England its itinerary was largely southern based, much like that of Henry I. Ranked according to the number of surviving writs and charters issued from them, the tally was as follows: Westminster-London (268); Winchester, Clarendon, and the surrounding area (200); Woodstock (103); Northampton (80); Windsor (45), with only Nottingham (51) in the north. Henry did not, therefore, have to travel for the purposes of routine government. It was the constant alarms and excursions which sent him shuttling round his dominions at breakneck speed. When across the Channel he was pursued by a stream of petitioners from England: the abbot of St Albans found him in Normandy, the litigious Richard of Anstey as far south as Auvillar on the Garonne. The response was an equally constant stream of writs to the English regents, ordering them, among other things, to hear law cases or prevent shrieval oppression.
In the early years, in dealing with such petitions and issuing the writs one minister, always travelling with the king, was central: the chancellor Thomas Becket, a former clerk of Archbishop Theobald, whose flamboyance Henry found amusing and whose energy and ambition he embraced as like his own. The output of Henry’s chancery was almost certainly much higher than that of his grandfather Henry I, the total of known documents (of course only a fraction of the whole) averaging 120 a year as against forty in the earlier period. The reign also saw the culmination, or near culmination, of longstanding developments in what the chancery produced, the Anglo-Saxon sealed writ having evolved certainly by 1199 into three distinct types of document, namely charters, writs patent and writs close. The last two in the thirteenth century were equally described as letters patent and letters close. Charters, since they usually conferred rights and properties in perpetuity, were the most solemn documents the chancery issued. They were addressed to all the king’s subjects, usually recorded the names of many witnesses and had the seal appended by silken threads. The difference between writs patent and writs close was that the latter were closed, that is folded up, with the seal being broken on opening, while the former were patent or open, the seal being attached to a tongue cut from the bottom of the document. Writs close, usually addressed to a single individual or institution and with a single witness, were used for the mass of routine administrative orders on which government depended, as well as for the writs initiating the comon law legal procedures described later. Writs patent, with a general form of address like charters but usually with a single witness, were used to grant exemptions, make appointments and proclaim a range of government decisions.
Around 1160 the head of the English government in Henry’s absence was Queen Eleanor. She was appealed to over the heads of senior officials, and issued written commands (sometimes more effective than theirs) to magnates, sheriffs and the exchequer. Alongside her were two great ministers, Robert, earl of Leicester, and Richard de Lucy, whom contemporaries saw increasingly as holding a formal office, that of ‘justiciar of England’ or ‘chief justiciar of the king’. In fact their position was very similar to that enjoyed by bishop Roger of Salisbury under Henry I; with Queen Eleanor increasingly overseas they came to act formally as regents in the king’s absence, continuing as chief ministers when he was present. At the heart of their power was the exchequer, where they presided, the detailed work being controlled by the treasurer, Richard fitz Nigel, nephew of the great Bishop Roger. His triumphal labours in reviving an office, running in 1154 at a sluggish pace, are reflected in his Dialogue of the Exchequer (1178), a book of proud and passionate precision which describes the whole process of the exchequer’s work from collecting the money, through to the final audit of the accounts, and its record on the pipe roll.
Lucy and Earl Robert worked together harmoniously until the latter’s death in 1168. Lucy, who was no yes-man, continued alone till his resignation ten years later. Richard fitz Nigel held office as treasurer from c. 1159 to 1196. Henry depended absolutely on such loyal, expert and long-serving ministers. Some of them were ecclesiastics (fitz Nigel became bishop of London); others were laymen, very much of the type employed by Henry I. Richard de Lucy himself, whom Henry took on from Stephen, came from a family of knightly status. Geoffrey fitz Peter and William Brewer were both sons of royal foresters. Henry followed the advice of his mother, the old Empress, and trained such men as he would hawks, keeping them eager by keeping them hungry. Lucy never became an earl and had to supplement his grants from the royal demesne, worth an annual £125, with numerous private acquisitions. His chief property at Chipping Ongar came from William, son of King Stephen. If such men lost royal favour, the vultures would gather round.
The transformation of Henry’s position is revealed most tellingly in his revenue recorded in the pipe rolls. The average for 1155 to 1157, his two first full years, in cash and authorized expenditure amounted to some £10,300, as against £24,500 in 1130. In the 1160s the annual average rose to £16,700, in the 1170s to £19,200; in the last eight years of his reign it was £23,300. On three occasions the figure for 1130 was exceeded (this in a period of relatively stable prices). There is little question but that England was by far the most valuable of Henry’s dominions. In Normandy there had been a similar policy of recovering ducal lands and rights, doubtless masterminded by the Norman exchequer. But the one surviving Norman pipe roll for the reign, that for 1180, indicates a revenue equivalent to only £6,750 in English money. Two years later, in his will, Henry distributed 5,000 marks for pious purposes in England, 3,500 marks in Normandy and only 1,000 marks in Anjou. England was the paymaster for the rest of the empire. As early as 1159 it provided some £8,000 for the Toulouse campaign.
In managing his money Henry was an innovator. He was the first king (at least as far as the evidence goes) to use credit on a large scale, borrowing around £12,000 (and possibly much more) from various lenders between 1155 and 1166, and repaying them from local revenues. Over half this sum came from one great financier, the Fleming William Cade, who had probably made his money in the wool trade. Cade died around 1166 and had no Christian successors, partly because of changing attitudes to usury. For a while Henry borrowed money from the Jews until he realized it was much simpler to tax them, thus opening up a new and major source of royal revenue.
Henry’s increasing wealth underpinned other policies designed to reassert authority over the baronage. In 1166 he demanded that all his barons send him in writing the names of their tenants and how much knight service each of them owed. Part of the background here was scutage. This was a money payment a baron could make, if the king agreed, instead of providing military service. The rate varied between different scutages but was often a pound for every knight owed. Scutage had existed under the Norman kings although it is only after 1154 that hard evidence survives of its operation. The aim in 1166 was to gain information enabling the tax to be levied, not on the number of knights a baron owed the king as hitherto, but on the total number he was himself owed by his tenants, which, as the inquiry showed, was sometimes considerably more. Another aim (which was why Henry wanted to know the names of the under-tenants) was to make sure they had actually sworn allegiance to him – very much the 1086 Oath of Salisbury over again. There was to be no one in Henry’s England immune from his authority. In 1170 the Inquest of Sheriffs inquired into the malpractices of baronial as well as royal officials. In 1178 the Dialogue of the Exchequer asserted the principle that the king could employ whoever he liked in his service no matter from whom they held their land.
From this point of view Henry’s rule seems dangerously abrasive. It certainly spawned the baronial malcontents who joined the rebellion of 1173–4. It also, notably in the working of the forest law, created wider disaffection. Yet there was another side, and indeed without it Henry would never have survived. The new procedures for civil litigation were highly popular with under-tenants (see below, p. 240); and one major concession benefited the realm as a whole. This was abandonment of the geld, the great land tax the Normans had inherited from the Anglo-Saxon kings. The levy of 1161–2 was the last. In the long term the significance of this was potentially immense. Had the tax continued on an annual basis and been levied at gradually higher rates it could have solved the financial problems of English monarchy in the thirteenth century, in which case, since the geld required no consent, parliamentary taxation and parliament itself might never have developed! As it was, Henry decided to forgo the £2,500 a year the tax had raised under Henry I, in this regard quite definitely not returning to the days of his grandfather. To some extent the gap was filled by other measures, notably tallage, a lump sum assessed on cities, boroughs and royal manors (with origins in the reign of Henry I), but this was neither annual nor nationwide.
There was also another side to the king’s relations with his barons. Few of them were placed under much financial pressure by the crown. If scutage had sometimes to be paid on the total number of fees, only seven were levied in the reign. Although Henry had nine opportunities to exact a fine or relief for a succession to an earldom, he did so only once. In terms of the financial pressures placed on his barons, Henry’s rule was very different from King John’s which led to Magna Carta. The barons also benefited from the peace, which enabled them to re-establish a hold over knightly tenants. Indeed the very process of the 1166 inquiry, which forced them to identify and define the services they were owed, did that. At the centre, all Henry’s major governmental measures were issued with the ‘advice and assent’ of the lay and ecclesiastical barons. The barons, as the Constitutions of Clarendon made clear in 1164, gave judgements in law cases before the king. Such men also featured among Henry’s principal counsellors. As justiciar, Richard de Lucy shared power not with some Bishop Roger type but with that veteran of the nobility, the worldly-wise Earl Robert of Leicester, his loyalty secured by the restoration of the family fiefs of Breteuil and Pacy in Normandy. Likewise Geoffrey de Mandeville, earl of Essex, having had his castles seized in 1157, ended up as one of Henry’s judges. His son, William de Mandeville, was Henry’s leading counsellor in later years and was made mightier still by his marriage to Hawisia, heiress of Holderness and Skipton in England and Aumale in Normandy.
Henry, therefore, in reviving royal authority had struck a delicate balance between taking and giving, one which helps to explain the great rebellion of 1173 and why Henry triumphed over it. How would he get on in re-establishing royal authority over the church?
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‘What miserable traitors have I nourished in my household who let their lord be treated with such shameful contempt by a low-born clerk!’ With these anguished words, or ones very like them, Henry II triggered the murder of Thomas Becket in 1170 and bloodily consummated the greatest of all clashes between the medieval church and state.
From the start of his reign Henry was determined to recover the customary rights over the church lost under Stephen. Accordingly he reasserted control over appointments, took the revenues from vacant bishoprics and abbeys, and insisted that barons could not be excommunicated without his consent. He also made clear that contact with Rome required his licence, and berated bishops and abbots when they appealed to papal authority in derogation of royal rights. Yet for long there was no open conflict partly because Theobald, the wily old archbishop of Canterbury, was expert in giving way on some issues to get his way on others: thus his clerk Bartholomew, a learned canon lawyer, became bishop of Exeter with Henry’s consent. On Theobald’s death in 1162, Henry made Becket his successor. By this time, so Becket believed, Henry was gearing up for a much wider assault on the church. The contrary view was that the assault was provoked by Becket himself. The truth lay somewhere between the two. Certainly Henry wished to place more of the bishoprics under his own men; Becket’s appointment was just the start. Probably, too, he meant to assert his authority over clerks accused of serious crimes. Yet he did not envisage a regional church protected from the papacy behind some ring fence, as modern historians have sometimes suggested. In 1163, after all, he allowed all the English bishops to attend the papal council at Tours. Equally Henry had not ready and waiting a list of customs he wished to impose; in 1162 there seemed no need. Becket, Henry’s faithful servant, was now to combine the chancellorship with the archbishopric. In so far as Henry wished for tighter control, Becket would achieve it.
Nothing like that happened. Becket at once resigned the chancellorship and plunged into a series of acrimonious disputes with the king, initially over the defence of Canterbury’s rights and properties, a defence which was an important sub-text to the whole dispute. All bishops had a sacred trust to protect the possessions of their sees and Becket in standing up for Canterbury’s was following in the footsteps of his predecessors. But they, perhaps, might have set about it more diplomatically. Certainly his new primate’s behaviour came as a total surprise to Henry. He had worked intimately with Becket for seven years but he had utterly mistaken his man. Henceforth all Becket’s passion and energy were to be diverted from the service of the state into the service of the church.
Given Becket’s background, this transformation was less surprising than it seemed. A later archbishop of Canterbury, Hubert Walter, who doubled up gleefully as chancellor, had laboured all his life in royal service. Becket had not. Born around 1120, the son of a London merchant, his formative years were spent in the household of Archbishop Theobald from where he had moved to the chancellorship in 1155. In Theobald’s service Becket was surrounded by learned clerks, many of them destined like himself for high ecclessiastical office. After an initial degree in arts, these men had often studied theology in the Paris Schools, or canon and civil law in the Schools of Bologna. They had lectured and had gained the coveted title of ‘master’. Their learning was intimidating. The canon lawyers revelled in citations from Gratian’s ‘Concordance of Discordant Canons’ or Decretum published in Bologna around 1140. The theologians, with their encyclopaedic knowledge of the Bible and its stunning allegorical meanings revealed by the ‘Great Gloss’ (the commentaries of the Paris theologian Peter Lombard), could punch any untrained opponent out of the ring. And Becket himself was relatively untrained. He had studied arts in Paris and law at Bologna and Auxerre, but had never become a master. A proud man, he stood in awe; the mark left was indelible. The whole dispute with the king is unintelligible outside this wider European background.
On becoming archbishop, Becket thus returned to his roots. Like Theobald he surrounded himself with scholars. One, Herbert of Bosham, abrasive and flamboyant, taught him theology and urged him to fight the good fight. Ultimately, all the new learning in theology and canon law came back to the pope; it asserted his supremacy over secular powers in theory, and intensified his headship of the church in actual practice. The learning of the Schools was indeed very practical. Theology prepared future priests and prelates for a ministry in the world. The image of the good prelate, forthright and incorruptible, influenced Becket from the start and spurred on his defence of Canterbury’s rights. Equally important was the way in which the Schools had sharpened old ideas about the relationship between church and state. For Becket, the clergy formed a separate and distinct body under Christ, subject to its own laws and discipline, and superior to, indeed the ‘constituter’ of, the secular power. ‘Since it is certain that kings receive their power from the church and the church receives hers not from them but from Christ… you do not have the power to command bishops to [obey your rules] simply because they are customs,’ Becket wrote to Henry on one occasion, getting to the very heart of their quarrel.
At the Council of Woodstock in July 1163 Becket refused Henry’s demand that a traditional payment due to the sheriffs from Canterbury lands (‘sheriffs aid’) should henceforth be made direct to the treasury. By this time Henry was greatly incensed by what he saw as the treachery and ingratitude of his low-born protégé. He now drove matters on with the aim of either subjugating Becket or breaking him, and because he met resistance, the quarrel escalated at an explosive pace. At the Council of Westminster in October 1163 Henry demanded that clerks accused of serious crimes, having been convicted in ecclesiastical courts and stripped of their clerical status, should then be handed over to royal officials for secular punishment in the form of execution or mutilation; this in contrast to being punished merely by what Henry saw as the inadequate spiritual penances imposed by the church, which had no deterrent effect at all. The issue of criminous clerks Henry would probably have tackled in 1158, faced by a particularly notorious clerical crime, had he not been recalled to France by his brother’s death. In 1163 there was another cause célèbre and the judges warned of a threat to public order. Even Herbert of Bosham later admitted that Henry was moved by zeal for the public peace. The procedure Henry now demanded had probably been customary until eroded under Stephen, but for Becket it was anathema. In spirit if not in letter it challenged the whole concept of the clergy as a separate order. It also conflicted with the best interpretations of canon law and violated scripture, which declared that God would not judge and thus punish twice for the same offence, a passage cited in Policraticus, the great work of another of Becket’s famous clerks, John of Salisbury. So Becket stood firm and the bishops with him.
Henry immediately raised the stakes and demanded that the bishops observe his ‘royal customs’. By the time a council met at Clarendon in January 1164 these had been formulated in writing: criminous clerks were to be punished as outlined above; tenants-in-chief were not to be excommunicated without royal permission; revenues from vacancies were to flow to the treasury; elections of bishops and abbots were to take place in the king’s chapel and thus be subject to royal control. There were also restraints on contact with Rome: ecclesiastics were neither to leave the kingdom nor pursue appeals beyond the archbishop’s court without royal licence. The Constitutions of Clarendon may well have been, as they claimed, the customs in force under Henry I. But to codify them for the first time threatened a much more exact and exacting regime than in the past, and in an age far less prepared to bear it. Becket rallied the bishops in defiance of the Constitutions, only then in an extraordinary volte-face to give way and accept them.
For Henry this was too little, too late. He was resolved to be rid of his archbishop, who in any case soon made no secret of regretting his submission. So in October 1164 Henry summoned Becket to Northampton to answer purely secular charges, some related to misappropriation of funds while chancellor. Becket refused to resign (the real object of the exercise) and before he could be sentenced to forfeit the lands he held by barony, he had fled. He would not return to England for six years, and then only to meet his death.
At Northampton several bishops had urged Becket to step down, and none had given him much succour. This might seem surprising given that most of the bench were churchmen, not royal administrators. They had close links with the papacy and several had enjoyed distinguished careers in the European Schools. If they felt that the church was under threat, they were just as likely, in terms of training, to resist, as was Becket. Until Northampton, up to a point they had done so. Not one claimed that submission at Clarendon was more than a necessary evil. Yet later in 1164 Gilbert Foliot, bishop of London and a distinguished lawyer, declared that the whole quarrel had arisen over a minor matter which could easily have been settled had Becket displayed ‘a discrete moderation’. When angry, Foliot was more pithy: ‘He always was a fool and always will be.’ The implication was that a concession over criminous clerks, where the king’s case had some support in canon law, could have prevented the Constitutions in the first place. In reply Becket (and who knew the king better?) would have urged the impossibility of appeasing Henry. And was not Foliot a man with personal grudges, having aspired to Canterbury himself? Yet at Northampton even the sympathetic Bartholomew of Exeter had declared that the quarrel was personal, not general. Becket should be sacrificed rather than the church. The teaching of the Schools and the ambitions of the king had narrowed the parameters and made conflict more likely, but not inevitable. The missing ingredient had indeed been supplied by Becket himself. Not for nothing did one contemporary dream of him as a prickly hedgehog.
Before and after Becket’s departure in 1164 there remained room for manoeuvre. Henry himself, for all his aggression, never advanced exalted theoretical claims for the secular arm. He hinted that he held his power direct from God rather than from the church, but fundamentally he just stood on custom. And then there was the position of the pope. Alexander III (1159–81) was a celebrated canonist. He expressed horror at the Constitutions of Clarendon and absolved Becket from his oath to observe them. Yet he never issued a formal condemnation and frequently prevented Becket from excommunicating his enemies. The problem was that from 1159 through to 1177 Alexander faced a series of anti-popes sponsored by the Emperor Frederick Barbarossa. His first priority was inevitably the freedom of the papacy itself. Perhaps Henry II could not have brought his dominions into Frederick’s camp, but he was adept at hinting otherwise. Alexander dared not take the risk. Henry, however, remained under pressure to reach a settlement. He was unable to make episcopal appointments while the conflict lasted and had to endure both Becket’s excommunication of Foliot in 1169 and his dalliance with the king of France. Then in 1170 he scored what seemed a colossal victory. That July his eldest son was crowned king of England at Westminster by Roger, archbishop of York (see below, p. 223). The ceremony was a flagrant violation of Becket’s rights as archbishop of Canterbury. He was desperate to reach a settlement so that he could reassert his authority and punish the offenders. Henry, on the other hand, hoped a settlement would reconcile Becket to what had happened. Thus he restored the properties of the archbishopric and allowed Becket to return to England. As for the Constitutions of Clarendon, nothing was said, which allowed Becket to think they were dead, and Henry that they were still very much alive. Becket landed on 1 December, having already suspended the bishops involved in the coronation and renewed the excommunication of Foliot. When news of these proceedings reached Henry in Normandy, he let fly the fatal words, and four household knights acted upon them. On 29 December they reached Canterbury, saw Becket in his chamber, and were chased out with shouts of defiance, much to the dismay of the fearful John of Salisbury. An hour or so later, in the gathering dusk, the four found the archbishop again in his cathedral. They probably intended arrest rather than murder, but when Becket resisted, they hacked him to death.
No single event in the central Middle Ages, apart perhaps from the fall of Jerusalem in 1187, so profoundly shocked western Christendom. As the news spread, Henry was hit by great waves of revulsion. The monks of Grandmont near Limoges stopped work on their buildings and sent away the workmen Henry had provided lest they be tainted by the deed. ‘The gold of your crown is tarnished and the roses which adorn it have fallen,’ lamented a former prior of the monastery. Even before Becket was canonized in March 1173, Henry was forced into concessions, though their precise significance is open to debate. At Avranches in 1172, in return for his own absolution he agreed to abolish the evil customs he had introduced; in practice this meant the end of the Constitutions of Clarendon. They were never cited again as good law, however much some of the individual practices continued. Yet arguably Becket had done no more than destroy the written definitions he himself had provoked. The Constitutions of Clarendon were the consequence of the dispute as much as its cause. There was no equivalent to the conflict elsewhere in Henry’s dominions. Four years later, in 1176, Henry freed criminous clerks from secular punishment. If as seems likely such punishment had always been Henry’s intention, Becket’s victory was here unalloyed. It secured ‘benefit of clergy’ down to the Reformation, at some cost to law and order. In 1172 Henry had also promised not to impede appeals or visits to the pope. Thereafter large numbers of appeals certainly went to Rome and were usually resolved by judges delegate appointed to hear the cases back in England. The papal decrees on points of law spawned by such cases were brought together in decretal collections, like those compiled by bishops Bartholomew of Exeter and Roger of Worcester, both of whom were very active as judges delegate. When an official collection of Decretals was issued by the papacy in 1234, 180 of the 470 decrees were addressed to England. The kingdom was thus fully within the compass of papal government. Yet it is far from clear that these developments were the result of the Becket dispute. It did not take 1172 to open the floodgates between Rome and England. The flow had been increasing gradually throughout the century. Henry’s concession in 1172 (in form at least) meant the end of a licensing system which dated back to the Conqueror, yet outside times of emergency kings had always seen this as a sieve rather than a fence. They had little interest in the great bulk of matters which went to Rome, many involving minor disputes within and between ecclesiastical institutions over rights and jurisdiction. Nor in practice could they stop such business without great difficulty, because the pope was not forcing his justice down people’s throats. The demand came from below, from within England itself (as from elsewhere in Europe), and was the product of the attitudinal change wrought by the general movement of reform and the study of canon law and theology.
On occasions when Henry did need to safeguard the rights of the king and kingdom, he still had weapons to hand. He sometimes had papal judges delegate hear their cases in his presence. Under the settlement of 1172 he was allowed to take securities for good behaviour from anyone going to Rome whom he suspected. Cases concerning both advowson (the right to appoint to a church living) and church land held in return for secular services continued, in accordance with the Constitutions, to come before secular courts. Above all, Henry retained control over the areas most vital to him: namely appointments and vacancies. ‘I order you to hold a free election but forbid you to elect anyone save Richard [of Ilchester], my clerk.’ So Henry allegedly wrote to the electors of Winchester in 1173 about their new bishop, and Ilchester was indeed elected, as around this time were several other royal clerks. If Becket’s successors as archbishop, Richard of Dover and Baldwin of Ford, were not king’s men, neither caused trouble. In 1176 Henry had also promised not to keep bishoprics and abbeys vacant for more than a year save in cases of urgent necessity, but necessity pressed often, especially when the sees were wealthy: York was vacant from 1181 to 1189.
During the course of the twelfth century the church in England embraced papal government and was transformed in the process. The king’s hold in some areas, however, remained strong, and was bitterly criticized by conscientious churchmen. How could a diocese be healthy when it had a bishop absorbed in secular affairs or indeed no bishop at all? But, on the other hand, how could bishops do their work if standing up for ecclesiastical rights led to titanic struggles between church and state? There had to be a middle way, and there was. Richard of Ilchester was twice excommunicated by Becket, yet as bishop of Winchester he acted as a judge delegate and elicited important rulings on legal points for the pope. He also continued in the royal service, yet won the tacitapproval of the dean of St Paul’s and former Paris Schoolman Ralph of Diss for so doing. The divisions between church and state were rarely as clear-cut as the rhetoric of the Becket dispute suggested. Bishops like Richard of Ilchester created the harmony between church and state in which pastoral work could flourish. There was much of it to do. Late in life one of Becket’s former clerks, Gervase of Chichester, lamented the immorality and worldliness of clergy and lay people alike. In response to such problems, in 1175 Archbishop Richard of Dover promulgated important canons at a great provincial council. It was work like this which pointed the way forward for the bishops of the thirteenth century (see below p. 437).
* * *
At the start of his reign, King Henry had moved decisively to repair the mutilated state of his kingdom in the north, recovering all that had been lost to King David. For David’s grandson, Malcolm IV, who had succeeded to the Scottish throne at the age of twelve in 1153, this was a deep humiliation. He had also to face the internal tensions which the new Davidian state had created. Yet Malcolm emerged triumphant. Rebuffed in the south, he expanded his power west and north, a re-orientation which, continued by his successors, ultimately created a new Scottish kingdom.
For the northern chronicler William of Newburgh, writing in the 1190s, Malcolm seemed chiefly remarkable for his pious chastity, which survived, so it was said, the planting of a virgin in his bed. He also burnt with knightly ambition and impressed Newburgh with his ‘royal authority and severity’. But given his youth and his kingdom’s internal problems, there was little he could do to resist King Henry. In 1157, he surrendered all David had gained south of the Solway and the Tweed. However, Malcolm remained part of the Anglo-Norman world. His mother was Ada de Warenne, his ministers the Anglo-Norman magnates inherited from his father, notably the steward Walter fitz Alan, and constable Hugh de Moreville. Henry II, as a sop and a control, had granted him his father’s old earldom of Huntingdon and also land in Tynedale, the beginnings of an important lordship held by the Scottish kings in that area. It was to cut a dash on the wider stage, and to fulfil his obligations as an English earl, that Malcolm went on the Toulouse expedition of 1159 (see above, p. 194), being knighted by Henry in the bishop’s meadow at Périgueux – some 750 miles from Edinburgh, and a remarkable testimony to the extent and pulling power of the Angevin state.
Henry II remained acutely conscious of his northern frontier, not surprisingly after past events. He retained and rebuilt Wark castle on the Tweed border, and looked on testily as Malcolm invaded Galloway (1160) and married his sisters to continental nobles. In 1163 he made Malcolm come south to Woodstock to renew his homage, though probably just for Huntingdon and Tynedale rather than the Scottish kingdom. At least Malcolm had avoided that. As security for the fidelity he owed, Malcolm handed over his brother David, Henry having initially pressed for castles within Scotland itself.
Malcolm had bowed to King Henry partly because of his internal preoccupations. In 1153, at the start of the reign, he faced a rebellion led by Somerled, ruler of Argyll, and his nephews, the sons of Malcolm MacHeth, who ‘perturbed and disquieted Scotland in great part’ (as the Holyrood Chronicle recorded). They were joined by ‘very many men’ and doubtless exploited the resentments against the Anglo-Norman Davidian state. If MacHeth’s descent was in some way royal, and his confinement in prison since capture in 1134 suggests as much (see above, p. 179), this may well have been a threat to the throne itself. It was a threat which Malcolm overcame. In 1156 Donald, one of MacHeth’s sons, was taken and next year there was a settlement, MacHeth being released and ultimately becoming earl of Ross. Malcolm was lucky, for the interests of the MacHeths’ ally, the great Somerled, were essentially elsewhere.
Somerled (in Norse, ‘summer warrior’) was of Scoto-Norse extraction. In the 1120s and 1130s he recovered his family’s position in Argyll, doubtless helped by his alliance with the MacHeths (Malcolm MacHeth had married his sister), and his own marriage to the daughter of Olaf, king of Man, who dominated the Western Isles. The year 1153 had seen the death of two kings, Olaf himself as well as King David. The second might open up chances in Scotland, but it was the first which concerned Somerled more immediately because it threw the western seas into turmoil. There Somerled competed with Godfrey, Olaf’s son, and the king of Dublin for mastery in the area, with the nominal overlord, the king of Norway, making only noises off. In fact no Norwegian king intervened directly in the Western Isles between 1098 and 1264. Given the instability in Norway, they were usually powerless to do so. Essentially in this cold and choppy North Sea world, periphery to the Scottish kingdom, central to the contestants, the rulers of Argyll, Galloway, Dublin, and the Isle of Man fought things out for themselves. In 1156 Somerled defeated Godfrey in a great naval battle and two years later drove him from Man into Norwegian exile. In the words of an Irish annal, he was ‘king of the Hebrides and Kintyre’; probably he was king of Man as well.
Malcolm’s defeat of the MacHeths was not the end of his problems. When he returned in 1160 from the Toulouse campaign and reached Perth he was confronted by Earl Ferteth of Strathearn and five other earls determined to take him prisoner. The Melrose chronicle states they were ‘enraged against the king because he had gone to Toulouse’, which suggests native hostility to Malcolm’s Anglo-Norman outlook and policies. Threatened by the new Anglo-Norman lordships to his north and east, the conspiracy was joined by the veteran Fergus, ‘king of the Galwegians’, who, married to an illegitimate daughter of Henry I, had both unified Galloway for the first time and had expanded its frontiers. Having avoided capture, Malcolm, according to the Melrose chronicle, went thrice into Galloway with a large army and subdued his enemies. This was an important moment in the westward expansion of royal authority. Malcolm forced Fergus into retirement and established a royal base at Dumfries on the Nith; he planted his chamberlain, Walter of Berkeley, astride the Urr, the ancient eastern boundary of Galloway, behind which Fergus’s sons, Uhtred and Gilbert (never described as more than ‘lords’), were pinned. Malcolm could now glare across the Solway at King Henry in Carlisle.
Meanwhile Malcolm established a group of Flemings in Clydesdale and set up a sheriffdom at Lanark (or at least in the records one now appears there). He also increased the lordship of his steward, Walter fitz Alan, ancestor of the Stewarts, around Renfrew, something which proved too much for Somerled. In 1160 he had settled with Malcolm, perhaps acknowledging his overlordship of Argyll. Now in 1164 he gathered 160 ships, teeming with warriors including some from Dublin, and attacked Renfrew itself, only to meet his death there. His achievement survived. Godfrey, son of Olaf, recovered Man, Skye and Lewis but Somerled’s descendants (the MacSorleys) long held sway over Argyll, Kintyre and the adjoining islands.
Malcolm also held the line in the ecclesiastical field. The loss of the south made York’s claims to metropolitan authority over the Scottish church far less tolerable than in David’s heyday, and in 1159–60 Malcolm begged the pope to give such status instead to St Andrews, raising it to an archbishopric. He had no success, but at least, in clear rebuttal of York’s pretensions, the pope in 1164 personally consecrated Ingram, Malcolm’s chancellor, as bishop of Glasgow, and in the next year authorized the consecration of a new bishop of St Andrews, Malcolm’s chaplain, by the Scottish bishops themselves. By this time Malcolm was a sick man, but when he died in December 1165 the dynasty was secure, a tribute to his own work, and also to the structure and balances of the Davidian state. William, Malcolm’s brother, succeeded without challenge to a political system which worked.
* * *
King Henry had put the clock back in Scotland. He also aimed to do so in Wales, where the native rulers in Stephen’s time had made substantial gains at the expense of both the king and the marcher barons. In the 1150s three great rulers held sway in native Wales. In the north Owain had dominated Gwynedd since the death of his heroic father Gruffudd ap Cynan in 1137; in the north-east Madog ap Maredudd had (temporarily) unified Powys, while in the south in Deheubarth, the young Rhys ap Gruffudd was just beginning his illustrious career.
Owain, however, was at odds with Madog from whom he had wrested Iâl in north-west Powys, with Rhys to whom he had lost Ceredigion, and with his own brother Cadwaladr whom he had expelled from Anglesey. Henry was quick to exploit these divisions. He forced Madog to surrender Oswestry, and then in 1157, with Madog in his army, invaded Gwynedd. He had a secure base from which to advance, for the earldom of Chester was in his hands during the minority of the heir (1153–1163). Having survived an ambush in the woods of Coleshill, Henry marched on relentlessly to Rhuddlan, near the mouth of the Clwyd. Owain did homage and resigned Tegeingl, the cantref between the Dee and the Clwyd which he had seized from the earl of Chester. Thus Henry’s approach was strikingly different from that of Henry I who had accepted Gwynedd’s expansion at the earldom’s expense. In the south, Henry had already denied Pembroke to Richard fitz Gilbert de Clare and it remained a royal base throughout the reign, leaving Richard just with Chepstow. Now Rhys ap Gruffudd hastened to court and resigned Carmarthen to the king, Ceredigion to Earl Roger de Clare, and Cantref Bychan in Ystrad Tywi to Walter de Clifford. Wales was back to where it had been in 1135.
Almost at once Rhys repented and went on the warpath, to be spared retribution by a factor which, as Gerald of Wales observed, saved Wales again and again in this period: the king’s continental priorities. In July 1158 Henry’s brother Geoffrey died at Nantes. The Loire valley and control of Brittany, or the Tywi valley and control of Deheubarth? There was no contest. Henry crossed the Channel and did not return for over four years. In 1159, as Henry advanced on Toulouse, Rhys besieged Carmarthen, and defeated royal forces with their Gwynedd allies. Next year Madog died, and Powys became divided between four segments of his kin; a decisive moment in its history, for unity was never restored. Henry needed to reassert his authority and in 1163 he returned to Britain. He marched into Rhys’s fastness of Cantref Mawr and forced his submission. That July at Woodstock he received the homages of Rhys, Owain Gwynedd and the rulers of Powys.
All this, however, was but a signal for a general rising. In 1164 Rhys ravaged Ceredigion and seized Dinefwr on the Tywi, the ‘principal seat’ of Deheubarth. Early next year Owain’s son Dafydd invaded Tegeingl in an attempt to reverse its loss in 1157. Henrician revenge seemed certain and in July 1165 Owain, Rhys and the rulers of Powys united their forces at Corwen in the Dee valley to meet it. Henry indeed struck hard, marching his army up onto the great range of the Berwyn hills, 2,000 feet above sea-level, only to be driven back by torrential rains. Apart from the Toulouse campaign, it was the greatest defeat of his career. It was also a critical moment for the Welsh rulers, for little would have remained of their independence had Henry descended from the hills and scattered their armies. The fear that Henry would try again the following year prompted a response from Owain which shows a remarkable grasp on his part of the wider European stage. In 1165 those in the know across the Channel had calculated that Henry would not attack the Welsh until he had reached a settlement with King Louis. Owain saw the connection too and wrote on three occasions to the French king, ultimately suggesting that they should co-ordinate military operations. This is the first known occasion on which a Welsh ruler had established contact with a European monarch. In the event Louis was not needed, because a rebellion in Brittany took Henry once more across the Channel in 1166 and he did not return for four years.
So in the north Owain was able to consolidate his hold of Tegeingl, turning Rhuddlan into ‘the noble castle’ where his son entertained Archbishop Baldwin and Gerald of Wales ‘most handsomely’ in 1188. His ambitions also reached beyond the territorial expansion of Gwynedd to the assertion of dominion over all native Wales. He was doubtless influenced by the way minor rulers had sought the protection of his father, Gruffudd ap Cynan – at least according to Gruffudd’s Life. Probably there were also memories of Gruffudd ap Llywelyn, king of ales ‘from end to end’ before his defeat by Harold in 1063. In his first two letters to Louis, Owain described himself as ‘king of Wales’ and ‘king of the Welsh’. In his last letter to Louis, Owain went further still, styling himself not king but ‘prince of the Welsh’, the first native ruler to use this style. He thus proclaimed both his uniqueness and his independence for in Roman law ‘prince’ indicated a sovereign ruler, which was why Henry was so angry when he heard about Owain’s use of the title. By calling himself ‘prince of the Welsh’ Owain was also, of course, asserting his supremacy over the other native rulers. It was that which Owain’s descendants were to achieve in the thirteenth century.
Owain died in 1170 with Gwynedd once more extended to the Dee, and while making claims for a wider hegemony. How those played with the other rulers if they were ever presented to them we do not know – badly, one would think, given their own ambitions and fierce independence. That was always the obstacle to any single overlordship. The Brut saw 1165 not as a national movement, but one simply of co-operation: ‘All the Welsh united to throw off the rule of the French.’ As it was, Owain’s sons and the rulers of Powys were soon at each other’s throats. The future lay with Rhys ap Gruffudd of Deheubarth, the Lord Rhys (Yr Arglwydd Rhys), as he was often described in the Brut. In November 1166 he took Cardigan and ended at long last the Clare connection with Ceredigion. He also ousted the Cliffords from Cantref Bychan and wrested Cilgerran and Emlyn in northern Dyfed from William fitz Gerald. This time it was not the continent that saved Rhys, but Ireland.
In 1171 Henry led a great army to Pembroke, whence he sailed for Ireland. This was a decisive moment in Welsh history. Henry’s intervention in Ireland made the security of south Wales an absolute necessity. Had he met resistance he would doubtless have achieved it by force. Instead it was achieved by Rhys’s immediate submission, a submission so spontaneous and dignified that it immediately won Henry’s trust. Next year, as Henry passed through Wales on his way back to Normandy, he made Rhys, in the words of the Brut, ‘justiciar on his behalf in Deheubarth’. Rhys’s policy in 1171 had been masterly, and represented a complete change of tack. He saw he would gain far more from co-operating with King Henry than competing with him. His new position meant the king recognized his conquests and would protect them from attack by royal officials and marcher barons. In return Rhys would ensure that the native rulers of Deheubarth kept the peace, an obligation which, of course, enhanced his own authority. Henceforth if in one role he was Henry’s justiciar, in another, as Roger of Howden put it, he was ‘king of South Wales’.
* * *
In the years after 1171 Ireland in significant part was conquered and colonized by the English, or so the invaders were usually called because they came either from England or from England’s colonies, the marcher baronies of Wales. This was the beginning of England’s baleful attempt to dominate Ireland. The Vikings had attacked and settled in Ireland in the ninth century (Dublin, Wexford and Waterford remained very much Norse towns in the twelfth) but, apart from that, as contemporaries observed, the island had never before been conquered, not even by the Romans. These events, therefore, were both momentous and extraordinary and they were recorded by the victors themselves in two great works of literature, Gerald of Wales’s The Conquest of Ireland (finished in 1189) and The Song of Dermot and the Earl, a celebratory poem dating, in its original form, to soon after 1176.
The English came to Ireland because they were invited by Dermot MacMurrough to help recover his kingdom of Leinster and defeat Rory O’Connor, king of Connacht, his rival for the ‘High Kingship’. Ireland was a land of many kings (like earls elsewhere, saidThe Song of Dermot) and there was constant conflict between them for control of the provincial kingdoms and, among the greater kings, for possession of the High Kingship of all Ireland. This was partly because there were no clear rules of succession; kings might have many sons by many wives, all of whom could be considered throne-worthy. It was partly too (though this was changing) because kingship had little institutional content, and hegemonies based on oaths, tribute and military aid easily rose and fell.
MacMurrough’s recruits came from the marcher magnates of south Wales and in particular from a group of men of mixed Welsh and Norman blood, to which Gerald of Wales himself belonged. These were the descendants of Nest, daughter of Rhys ap Tewdr, and the various Normans, including Henry I, with whom she had had relationships. The power of these marcher lords had been severely trimmed by the triumphs of Rhys ap Gruffudd in the south. They were as eager to go as Rhys was to wave them on their way: to that end he actually released from imprisonment Robert fitz Stephen, son of Nest by Stephen, castellan of Cardigan. In May 1169 fitz Stephen arrived in three ships with 30 knights, 60 men at arms and 300 foot archers. He was followed by Raymond le Gros, Maurice fitz Gerald, Meiler fitz Henry (a grandson of Henry I and Nest), and Robert and Philip of Barry, Gerald of Wales’s brothers. With such help MacMurrough was astonishingly successful and soon recovered control of much of Leinster. Then a baron of even greater power came to his aid. This was Richard fitz Gilbert, lord of Chepstow in Wales and son of Gilbert fitz Gilbert de Clare, Stephen’s earl of Pembroke. His usual nickname ‘Strongbow’ is not contemporary and gives him an altogether false glamour. Fitz Gilbert was intelligent, circumspect, and highly temptable; as a former supporter of Stephen, Henry had refused to recognize him as an earl, and had deprived him of Pembroke. Fitz Gilbert landed in August 1170 with 200 knights and 1,000 other troops. Waterford was captured at once, and then on 21 September the combined English and MacMurrough forces took Dublin, already recognized as the ‘head of the kingdom’.
The most fundamental feature of the invasion now became apparent. The English had not come for pay and plunder on a ‘here today, gone tomorrow’ basis. They had come for land and meant to stay. ‘Whoever shall wish for soil or sod richly shall I enfeoff them,’ proclaimed MacMurrough, according to The Song of Dermot and the Earl. With this in view he gave fitz Stephen Wexford, and promised Richard fitz Gilbert the hand of his daughter Aife and, with her, succession to the kingdom. When MacMurrough died in May 1171 it seemed that fitz Gilbert might indeed become king of Leinster and perhaps even High King of all Ireland. This was too much for King Henry. He could not possibly have disaffected barons carving out kingdoms for themselves in Ireland. But this was not the only reason for the expedition he now planned. Before it sailed fitz Gilbert, brought to heel by the confiscation of his Welsh and English lands, had already surrendered Dublin, Water-ford and Wexford and agreed to hold the rest of Leinster from the king.The truth was that Henry, as William of Newburgh put it, wanted to have ‘the glory of such a famous conquest’ and its proceeds for himself.
There was a wider background here. Ireland was the reverse of remote. It had longstanding trading links with Bristol and Chester. Welsh rulers had often gone there in exile. Rumours that kings of England might conquer Ireland had been prevalent since the time of William I. Rufus, according to one story, had boasted of building a bridge of boats across the sea. Such ideas were strengthened by the extraordinary success of Geoffrey of Monmouth’s History of the Kings of Britain, for Ireland had been conquered with remarkable ease by its hero Arthur. Already in 1155 Henry himself had held a great council at Winchester to discuss the plans for ‘the conquest’. Some of the initiative here may have come from Archbishop Theobald, who hoped to reestablish Canterbury’s claims to authority over the Irish church: in 1152 its independent diocesan structure had been recognized by the pope. But Henry also saw Ireland as a fitting kingdom either for his younger brother William or, after William’s death, for his youngest son, John. The only problem was that he had no clear and convincing right to it. But here Pope Adrian IV came to the rescue. In 1155–6, hoping to further the cause of reform among its church and people, he issued a bull which could at least be interpreted as granting Ireland to Henry II in hereditary right. (The only purported text, however, known as Laudabiliter, was probably concocted by Gerald of Wales.)
The idea for conquest was there. The activities of fitz Gilbert and his fellows were the catalysts, as was Henry’s desire both to please the pope and vanish after Becket’s murder. In October 1171 Henry crossed from Milford Haven to Waterford with (according to Gerald) 500 knights and numerous mounted and foot archers. He gained the peaceful submission of at least fifteen Irish kings, including those of Desmond and Thomond, together with the native archbishops and bishops. The conquest immediately revealed the face of its ‘civilizing’ mission: a council at Cashel, attended by nearly all the Irish bishops, legislated for lawful marriages and the proper payment of tithes. But it was not all plain sailing. The kings of Meath and Ulster remained defiant, as did Rory O’Connor of Connacht, who declared that he ‘ought to be king and lord of Ireland’. For the summer of 1172, therefore, Henry planned a further campaign. The history of Ireland might have been very different had he carried it out and completed the conquest. Instead, learning that papal legates were in Normandy ready to discuss a settlement of his rift with the church, he hastily departed and on 21 May 1172 was reconciled to the church at Avranches. The pope had already rejoiced at events in Ireland, and had issued bulls which seemed to confirm dominion over the island to Henry and his heirs.
Higher priorities meant that Henry never came back to Ireland. Without the immediate catalysts in 1171 he might never have gone there. Yet he often threatened to return, and regarded its affairs as ‘great matters’ to be closely monitored and controlled. The richest pickings were to be his, not fitz Gilbert’s. Before leaving, Henry placed Waterford, Wexford and Dublin with their surrounding territories under his own officials. For the rest he made Leinster and Meath great fiefs to be held for knight service and the other conditions of feudal tenure. The former was to be held by fitz Gilbert and the latter by Hugh de Lacy, lord of Weobley and Ludlow.
Henry’s aim was to create a stable and wealthy kingdom for his son John, but he faced problems from both the native kings and English invaders. In 1174, after Henry had pulled fitz Gilbert and others out of Ireland to meet the crisis elsewhere in his dominions, ‘all the people of Ireland with one consent rose against the English’ (so wrote Gerald of Wales). Meath, which Hugh de Lacy was busy wresting from its native rulers, was a particular centre of the rising. These events encouraged Henry the next year to reach a settlement with the greatest of the native rulers, he who had defied him in 1171: Rory O’Connor. Under the 1175 Treaty of Windsor Rory was to hold Connacht under Henry and, as recognition of his High Kingship, have authority over the rest of Ireland outside the English areas. But the agreement soon collapsed and the English advance continued. In 1177 Henry gave Robert fitz Stephen and Miles de Cogan the opportunity to seize the kingdom of Cork, while Limerick he eventually passed to Philip de Braose. Both were to be fiefs held by knight service but with the towns of Cork and Limerick reserved for the crown. In the same year John de Courcy, granted Ulster by Henry ‘if he could conquer it’, began his extraordinary career, a career which was to lead to the subjection of the ancient native dynasty and the creation of one of the greatest of the new English lordships. Nothing exemplified more clearly how a fortune could be made in Ireland, because John, a younger son of the Courcys of Stogursey in Somerset, had started his career almost landless. And nothing better demonstrated the importance of English connections: the Courcys had important interests in northern England, particularly in Cumbria, only seventy miles from the Ulster coast, and it was from there that the men who supported John’s conquest came, stepping across the sea all the more easily after he had married Affreca, daughter of the king of Man.
Sometimes Henry was incensed by rumours that Hugh de Lacy or John de Courcy was aspiring to create independent kingdoms; hence his joy at de Lacy’s murder in 1186. To keep control he sent in commissions of investigation, appointed as viceroy his steward William fitz Audelin, played Lacy off against fitz Gilbert, and in 1173 made the latter prove his worth in Normandy before allowing him back to Ireland. After fitz Gilbert’s death in 1176, leaving only infant children, the whole of Leinster came to Henry in wardship, where it remained till the end of the reign. Henry’s ensuing Ordinance for the government of Ireland, issued from Oxford in 1177, in its display of colonial mastery and power anticipates Edward I’s statute of 1284 after his conquest of Wales.
In 1177 Henry had designated John as king of Ireland. Eight years later in 1185, now nineteen, John arrived. His Norman entourage offended the native nobles by pulling their flowing beards; Hugh de Lacy and John de Courcy, not surprisingly, given the challenge to their own positions, were unco-operative, and John was home in six months, expressing no desire to return even when a crown of peacock’s feathers arrived from the pope. Nevertheless the expedition gave fresh impetus to the English settlement, for John’s followers received grants in both Louth (Bertram de Verdon and Gilbert Pipard) and Munster (William de Burgh and Theobald Walter), grants which it was up to them to transform into reality by conquest. Meanwhile, structures of government for the areas under the king’s direct control were developing very much on English lines. An exchequer was formed at Dublin and the administration placed under a justiciar, while the chief local agent became the sheriff. By the end of Henry’s reign the conquest was secure, although, of course, incomplete. It had been well worth it. In the thirteenth century Ireland provided kings of England with revenue and sources of patronage, yet they had to go there only once. The best type of colony.
Fundamentally the struggle for Ireland had been between two very different economic, social and political systems. The Irish had no armour, cavalry or castles and so were extremely vulnerable to invaders who possessed all three. The cavalry forces introduced by Dermot MacMurrough were small, yet again and again they faced his enemies with devastating results as though they were some utterly novel secret weapon, which indeed they were.
He charged them speedily without any pause
And the Irish who had no armour
They scattered themselves
By sevens and eights, by threes and fours
So that they did not hold together
And the earl then slew of these men
Seven score and ten.
In these words The Song of Dermot describes a charge by Richard fitz Gilbert. These were men on the make, with limited prospects at home, ‘strong-limbed barons of bold heart’, as the Song described Miles de Cogan. When the army was held up by the river Shannon outside Limerick, Meiler fitz Henry charged to the front on his white horse, plunged into the water and was carried across to the other side. ‘Pass over, knights. Why do you tarry?’ he shouted. Who indeed could tarry with such leaders? ‘And the earl then slew of these men seven score and ten.’ The English also learnt from the Irish. After some debate they soon abandoned the chivalric ways of Anglo-Norman warfare and politics. They killed in battle, murdered prisoners en masse, and publicly executed Irish kings, throwing the body of one of them to the dogs.
Having won the battles, it was above all by the castle that the English conquest was, in the words of The Song of Dermot, ‘well rooted’. That at Trim was the centre of Lacy power in Meath. In Louth, some twenty-three motte and motte-and-bailey castles have been traced. Even more important were the men who built the castles – not just the great lords but the under-tenants whom they introduced. Well might the Song triumphantly list the thirty or so vassals who were endowed with ‘rich fiefs and fair lands’ by fitz Gilbert and Hugh de Lacy. These men, tenants and associates from Normandy, Wales and above all from England, formed manors and introduced peasants to exploit them. Given that they were not great barons, John de Courcy in Ulster and Verdon and Pipard in Louth did not have the same reserves of tenants to draw on, but they were quite able to recruit from England, Courcy as we have seen from the north, Verdon and Pipard from their kinsmen, neighbours and connections in the west midlands and Shropshire. These under-tenants would fight tooth and nail to have and to hold. They formed the backbone of the English conquest of Ireland.
However potent their weaponry, the English with their small numbers would never have survived the dangerous early days in Ireland without the support of Dermot MacMurrough. No wonder native annals stigmatized him as ‘the ruin of the Irish’. Yet Dermot’s own conduct itself points to another side, which helps to explain both the conquest’s success and Irish survival: the Irish, like the Welsh, were quick to accommodate themselves to the new order, the bishops because they genuinely welcomed the reforms, the kings because they had no alternative. But at least Henry made the submissions easy and not unlike those offered to High Kings in the past. He held his court at Christmas 1171 in a palace built of wattles by the Irish kings ‘according to the custom of the country’. Native kings, moreover, did not only survive in the unconquered areas. In Leinster fitz Gilbert allowed Dermot’s son and nephew to act as ‘kings of the Irish of the country’. In Meath, while Donnel O’Melaghlin of the native dynasty was hanged at Trim, his brother Art was left ruling in the west.
Up to a point the conquest was an accident waiting to happen. From the moment that the Normans with their devastating military superiority arrived in Wales, warring Irish kings must have contemplated an appeal to them. Yet the price was high, and only the desperate (like MacMurrough) would pay it. It had to be paid in land because there was no coinage; indeed in fitz Gilbert’s case by the offer of a kingdom, an offer which (although this is debated) did violence to Irish custom. Even then it took the narrowing of opportunities in Wales for the offers to be accepted. In fact the conquest was never completed. That was partly because of the techniques of accommodation practised by the Irish kings, but also because the movement ran out of steam. The richest part of Ireland lay in the east and had been taken at the start. If the English kings sometimes hoped for more, they would not go out to get it. John’s expedition of 1210 was to discipline the barons, not to eliminate the native rulers. The second generation of baronial conquerors quarrelled among themselves, and sometimes had many interests elsewhere.
Thus the threefold division of Ireland, already apparent under Henry II, remained: the areas under direct royal control, the great fiefs and the surviving native kingdoms. Like the Normans in Wales, the English came to Ireland as piecemeal conquerors. For the most part they retained their own identity and constructed their own distinct polities, in part because there was no single kingdom to conquer; hence the fundamental differences between the histories of Scotland on the one hand and Wales and Ireland on the other.
* * *
Having restored royal authority in England and Normandy, conquered Ireland and settled the Becket dispute, Henry seemed at the height of his power. Yet he was almost at once engulfed by a massive rebellion which constituted the greatest crisis of his reign, just as his ultimate victory was his greatest triumph. In Britain the result was to confirm Rhys’s dominance in south Wales and to destroy Scotland’s independence.
The rebellion began within the royal house, the product of Henry’s wish to provide for his sons and settle the future government of his dominions. In 1170, with the act which so offended Becket, Henry’s eldest son (also named Henry), having done homage to King Louis for Normandy, was crowned king of England in deliberate contrast to Henry I’s failure to crown the Empress. In 1172 Richard, Henry’s second son, now aged fourteen, was invested with his mother’s county of Poitou. Geoffrey, the third son, was through his marriage to be duke of Brittany; John, the youngest, was to be lord of Ireland. Henry envisaged his sons gradually gaining more authority in their dominions and ruling them in harmonious splendour under his supervision. But for the moment the Young King, as his eldest son was called, felt he was simply a ‘paid servant’, with councillors who were ‘more masters than ministers’. His ultimate inheritance also seemed threatened by Henry’s scheme to endow John not just with Ireland but with castles in Touraine. In March 1173 he fled from court to join Louis VII, his father-in-law, in Paris.
The Young King was soon joined at Louis’s side by his brothers Richard and Geoffrey, dispatched there by none other than their mother, Eleanor of Aquitaine herself. Matilda, the Conqueror’s queen, had sent funds to support her son Robert, but this was rebellion on an entirely different scale. Since 1170 Eleanor had been holding her own court in Poitou, and was thus quite able to act against her husband. She had good reason to do so. After John’s birth in 1166, she had been replaced by mistresses. She had also seen her rights in Aquitaine flouted, most notably when Henry himself received the homage of the count of Toulouse in 1173.
The explosion within the royal family provided an opportunity for all Henry’s internal and external foes. Only Gascony remained relatively quiet. Since the Young King aimed to make himself ruler in Nomandy and England (‘Here is the king of England,’ proclaimed Louis) he could promise much. Roger of Howden gives separate lists of the Norman and English rebels, but the two revolts were inseparable and several of the great English rebels had extensive lands in the duchy. Their grievances are starkly apparent. Hugh, earl of Chester, for example, had never succeeded to the lands and castles granted to his father by Henry before his accession; Earl William de Ferrers had failed in his claims to the Peverel inheritance of his mother, and had been denied the title earl of Derby; Hugh Bigod, earl of Norfolk, now promised Norwich by the Young King, had been forced to pay £666 to recover his castles of Framlingham and Bungay and had then been threatened by the brand-new royal castle at Orford; Robert, earl of Leicester, had had to pay scutage – unlike his father, the great justiciar – and been amerced £333 for breach of the peace. The great revolt posed difficult choices for the Welsh and the Scots. Hywel ab Iorweth ‘while the king was contending beyond the sea’, as the Brut put it, recovered his castle of Caerleon which Henry had seized in 1171, and plundered around Chepstow. The Lord Rhys of Deheubarth, in contrast, calculated he had most to gain from backing Henry II, to whom of course he owed his overlordship in the south. He sent a son to serve in Normandy, and himself laid siege to Earl Ferrers’s castle at Tutbury. In Gwynedd, Dafydd, son of the great Owain, struggling for power both with his brothers and the earl of Chester, made a similar calculation. In Scotland, King William reacted very differently. He checked first with King Henry, who offered nothing, and then threw in his lot with the Young King, who promised Carlisle and the northern counties. There would never be a better chance to restore King David’s realm.
Henry met this the greatest crisis of his reign with a combination of calculation and anger, sang-froid and demonic energy. In August 1173 he drove King Louis from Verneuil and then galloped into Brittany where the earl of Chester (who was also viscount of Avranches) surrendered. In England the justiciar Richard de Lucy besieged Leicester and then moved to counter King William’s invasion of the north. William took no major castles, but he ravaged Northumbria and reduced it to famine before agreeing a truce. Meanwhile Henry’s cause was boosted by the capture of the earl of Leicester (in October, near Bury St Edmunds) and Queen Eleanor herself, who was making her way to the French court disguised as a man (an all too brief glimpse of her spirit and resource). All this, however, was just round one. In 1174, King William, King Louis and the Young King co-ordinated their operations. In May, William once more invaded the north. Again he took no major castles, but he wasted Cumbria, and Carlisle agreed to surrender if the town could not be relieved by 29 September. In the midlands, William’s brother David secured control of the earldom of Huntingdon, made alliance with Earl Ferrers and took Nottingham. Earl Bigod took Norwich. Messenger after messenger pleaded for Henry’s return. He crossed the Channel on 8 July in a great storm (declaring that if God wanted him to win through he would be safe enough), made straight for Canterbury and on 12 July did penance at Becket’s tomb. Next day God responded, or so it seemed. A northern force surprised King William at Alnwick and took him prisoner. On 26 July, his legs pinioned beneath his horse, he was delivered to an exultant Henry at Northampton.
The capture of King William soon brought the revolt in England to an end. Would Henry now descend on Wales and recover Caerleon? A Welsh seer assured Iorweth otherwise, because a great city across the sea was under siege. He was right. Henry crossed the Channel on 6–7 August with a large force of Welshmen supplied by Rhys. Four days later he entered Rouen in triumph, the besieging forces of Louis, the Young King, and the counts of Flanders and Blois melting away as he approached. Henry then proceeded to Poitou where he received Richard’s tearful submission, and by the end of September both the Young King and Geoffrey, with Louis’s agreement, had also submitted.
Henry’s victory owed much to ‘an abundant hoard of money in the royal treasury’, as William of Newburgh put it, which he used to hire large numbers of Brabantine mercenaries. And while he had clearly provoked some barons, Howden’s list of supporters ‘in England’ included ten earls, many with important interests in Normandy. Just before the crisis broke, moreover, Henry had been able to insert his men into six bishoprics. By contrast, contemporaries were quick to criticize King William’s ‘wild rashness’, as Jordan Fantosme put it. He had made little impression on Henry’s well-prepared northern castles, hampered as he was by his lack of siege engines and hardly helped by the 3,000 or more Scots, ‘naked men’ according to Jordan, from the kingdom’s common army. But at the least the latter’s ravaging and brutality demonstrated William’s power. The real disappointment was that, apart from Roger de Mowbray, Richard de Moreville and the bishop of Durham, he won little support from the northern nobility, the men whom David had worked so hard to bind to his regime. The fact was that in the north Henry had built well, inserting his men, like Robert de Vaux, the defender of Wark, into northern baronies and making the loyalist Stuteville brothers (enemies of Mowbray) sheriffs of Yorkshire and Northumberland.
One result of the collapse of royal authority during the revolt had been a whole series of encroachments on the royal forest, and these were punished by a forest eyre of Alan de Neville which imposed amercements totalling an exorbitant £12,000 (in 1176–8). But Henry was also merciful. His aim, as Ralph of Diss observed, was to restore peace and harmony as quickly as possible. Queen Eleanor remained in custody, but Henry’s sons were soon restored to favour. As for the rebels, not one was executed or even kept in prison. Henry destroyed their castles (the ruins long testified to his victory) but returned their lands. The Welsh loyalists now reaped their reward. In 1174 Henry married his half-sister Emma, an illegitimate daughter of Geoffrey of Anjou, to Dafydd of Gwynedd. According to the Brut he ‘thanked Rhys much for his fidelity’, and called him his ‘right loving friend’. Rhys’s position as Henry’s justiciar over Deheubarth was now doubly secure.
Only Scotland was exempted from this magnanimity. By the Treaty of Falaise in 1174 William was released, but in return for acknowledging that his kingdom was henceforth a fief held from the king of England. Henry was also to receive the homage and fealty of the earls and barons and other men ‘of the land of the king’. And all this was to be guaranteed through the surrender by King William of the castles of Roxburgh, Berwick, Jedburgh, Edinburgh and Stirling. Henry had cut his way into the Scottish kingdom and he had done so potentially on a permanent basis, for the agreement was to last in perpetuity. While the Scottish church, under the treaty, was to owe its ‘customary’ subjection to the church of England, there was no attempt to justify the subjection of the kingdom as ‘customary’, which suggests indeed that David and his successors had not in fact done homage for it. Henry was quite happy to see this as something new.
The king could now glory in dominions which stretched ‘from the last bounds of Scotland to the mountains of the Pyrenees’, as William of Newburgh put it. Within the British context, Henry, so Gerald of Wales opined, had conquered Ireland and Scotland and had ‘included by his powerful hand in one monarchy the whole island of Britain’, something never achieved before, even by the Romans. The reality did not quite measure up to this unificatory rhetoric. Britain was rarely at the top of Henry’s agenda, as his failure to return to Ireland and his postponement of Welsh campaigns shows. Nor was Henry’s attitude at all consistent. In Ireland he conquered and took the best part of the land under his direct rule. In Wales he became content to assert over-lordship over the native rulers. In Scotland, he wanted a loyal vassal king, but his essential policy was reactive and defensive. In his formative years King David had dominated northern England, and Henry naturally dreaded a renewal of the invasions which had brought that about. The events of 1173–4 confirmed his worst fears. The royal and baronial castles in the north had proved no defence. He needed to try something new. The extreme measures, the subjection of the king and his nobles, and the taking of castles within Scotland (first mooted in 1163), were a measure of the threat, not a base for conquest. In fact Henry never garrisoned Stirling in the heart of the Scottish realm, and after William had proved his dependability, in 1186 Henry actually returned Edinburgh to him. These moves would have been inconceivable had he really planned to expand his authority within Scotland.
After 1174 the situations of the Welsh rulers and King William were very different. The former could build on success, the latter had to come to terms with failure.
* * *
In 1188, on his great tour with Archbishop Baldwin to preach the crusade, Gerald of Wales was entertained by the Lord Rhys at Cardigan and by Dafydd ab Owain Gwynedd at Rhuddlan, the former sometimes described by contemporaries as ‘king of South Wales’ and the latter as ‘king of the North’. Having thrown back the yoke of its English conquerors, native Wales seemed to Gerald to have ‘increased remarkably in population and in strength’. This was a golden age.
In the south, Rhys’s power centred on the cantrefs of Mawr and Bychan in Ystrad Tywi with their great pastures and mountain fastnesses. In the former, above the river Tywi which divided the two cantrefs, lay Dinefwr, ‘the royal seat’, as Gerald of Wales put it, of the rulers of Deheubarth. Rhys also held sway in Ceredigion and parts of Dyfed, which he had wrested from the Clares, the Geraldines and other marcher barons. Outside these areas, Rhys’s authority over the native rulers of the south was loose and unobtrusive, owing much to the ties of kinship that he had in part created: the native rulers between Wye and Severn and in Glamorgan included his sons-in-law, nephews and a cousin. The co-operative nature of his rule is reflected in the earliest of the Welsh law books (‘the Cynferth redaction’), which was put together in south Wales during his time. While its allegiance was clearly to the ‘lord of Dinefwr’, it accorded the symbols of royalty to all the Welsh rulers. (The Welsh jurists who compiled the law books recorded not legislation and official law codes, but their own views of customary rules and practices.)
For a while Rhys also maintained good relations with Henry II, acting dutifully as his justiciar of Deheubarth. In 1175 and 1177 he presented the rulers of the south at Henry’s court. In 1179 Henry, for his part, punished Roger Mortimer and his men when they murdered the ruler of Maelienydd. Meanwhile Rhys married sons and daughters into the marcher families and, always courteous and quick-witted, elicited compliments from the Clares over his conquest of Ceredigion: they could not have lost it, they said, to a more ‘noble and valiant prince’, an exchange which took place over breakfast during a pleasant meeting at Hereford in 1188.
These were the conditions in which Rhys’s rule flourished. He increased his cash revenues by changing renders in kind into money, and perhaps sponsored the Welsh law books we have referred to, books which begin by listing the rights of the king. Rhys also won the favour of God, strengthened his hold on Ceredigion, and showed his integration into the wider European world by richly endowing the new Cistercian monastery at Strata Florida. He also affirmed the preeminence of Deheubarth by promoting the cult of St David as the premier saint of Wales; it was at St Davids that he himself was buried. At his new castle of Cardigan in 1177 he held the first Eisteddfod. Well might poets, chroniclers and the scribes of his own and later charters trumpet his praises: ‘Rhys the Great’, ‘Rhys the Good’, ‘rightful prince of South Wales’, indeed ‘the Unconquered Head of all Wales’.
In the north, Dafydd’s power never equalled that of Rhys, for he shared Gwynedd with his nephews and his brother Rhodri. Yet his basic approach was much the same, with his marriage to Henry II’s sister, and his alliance forged by 1177 with the earl of Chester. But there was no way such arrangements could bring any permanent stability to Wales. That was partly because both Rhys and Dafydd wished to use their English-derived power against their Welsh neighbours. As Ralph of Diss put it, Dafydd hoped ‘to strike terror into the other Welsh as a result of his new affinity’, referring here to his marriage to Henry’s sister. In 1177 he and the earl of Chester invaded northern Powys. In the same year Rhys secured a grant of Meirionydd, Gwynedd’s southernmost district bordering Ceredigion, from Henry II (who thus demonstrated his lordship over all of Wales), only to be repulsed by Dafydd’s nephews. Deep fissures could also open up between the Welsh rulers and the marcher barons. William de Braose might have married a daughter to one of Rhys’s sons, yet he was also implicated in a terrible massacre in 1177 at Abergavenny after which ‘none of the Welsh dared place trust in the French’. For all the compliments bobbing between Rhys and the Clares everyone knew that in Wales the ebb and flow of battle might at any time recommence.
There was also a gradual shift in Rhys’s relations with the king, product of a series of minorities among marcher barons which between 1176 and 1184 brought Chepstow, Lower Gwent, Glamorgan and Gower into royal hands. As a result the pressure from the marcher barons was off. But instead Rhys found himself hedged round by royal bases under assertive officials. Urged on by an aggressive brood of sons now reaching manhood, Rhys changed tack. Between 1182 and 1184, while Henry was out of England, he ‘devastated the king’s land and killed his men’ (Roger of Howden). When in 1184 this produced Henry’s return, Rhys immediately submitted, but then, Henry’s campaign abandoned, he refused to implement promises he had made. In the next few years Rhys, with all his old tactical skill, was testing the ground to see just how far he could go. His aim was to take Gower, Kidwelly and above all Carmarthen, where royal officials controlled traffic on the Tywi and monitored events some fifteen miles away at Dinefwr. It was to be a policy pursued with vigour after Henry’s death in 1189.
* * *
The Treaty of Falaise left King William in an appallingly dangerous situation. Since he now held his kingdom as a fief from King Henry, it was liable to forfeiture for any act of disloyalty, much as Scotland was ultimately forfeited by John Balliol in the 1290s. At the same time his capture and humiliation released all the tensions within the realm, rather as the succession of the boy king Malcolm had, back in 1153. William’s reaction was the reverse of unintelligent and hot-headed. On the contrary his flexible determination saved the monarchy from King Henry and increased its authority over his native subjects.
Henry’s overlordship was far from merely nominal. He garrisoned the castles of Edinburgh, Roxburgh and Berwick, and thus virtually excluded William from the richest burghs in the kingdom. As a consequence, William shifted his itinerary and spent a much higher proportion of his time north of the Forth, notably at Perth, Stirling and Forfar. Henry also summoned William to his court. He was there in eight of the fourteen years between 1175 and 1188, as against only two of the seven years up to 1172. The climax to this career as the Angevin dynasty’s ‘house’ king came in 1186 when William married in the royal chapel at Woodstock the bride found for him by King Henry, namely Ermengarde, daughter of the vicomte of Beaumont, a lady of status but few resources. Yet his concurrence paid dividends. Henry made Ermengarde’s dowry the castle of Edinburgh. He had also been conciliatory over William’s English fiefs. He had never confiscated Tynedale and in 1185 returned the earldom of Huntingdon, allowing William to grant it to his younger brother, David.
In one area the Treaty quickly came to nothing. Its stipulation that the Scottish church should owe its ‘customary’ subjection to that of England had an immediate background in Malcolm’s attempt to secure metropolitan status for St Andrews, thus freeing Scotland from the claims of York. ‘Customary’, however, was deliberately vague and almost anticipated the upshot, a renewal of the Canterbury–York dispute over where subjection was due. In 1176 Pope Alexander III kicked the whole matter into touch when he ordered the Scottish bishops to acknowledge the authority of neither, and condemned the ecclesiastical clauses of the Treaty outright as a shocking intrusion into church affairs. This was not something Henry much regretted, having learnt the dangers of powerful archbishops. The immediate sequel in Scotland was a long dispute over St Andrews, where William in 1178 tried to force his chaplain, Hugh, into the bishopric in place of the cleric elected by the canons, John the Scot. Both the pope and King Henry intervened. In 1181 William was briefly excommunicated and his kingdom placed under an interdict, but he emerged victorious. He excluded the monk’s candidate and on the death of his own in 1188 he succeeded in placing his chancellor in the bishopric. In 1192 the pope issued a celebrated bull (Cum Universi) which confirmed and amplified the verdict of 1176. The ‘Scottish church’, with its nine named bishoprics, was henceforth to be subject directly to the papal see. William had retained his hold over ecclesiastical appointments and severed the Scottish church definitively from that of England.
The list of the Scottish church’s bishoprics included neither Argyll, suggesting it was still tenuously connected to the kingdom, nor Galloway, the latter acknowledged to be subject to York. In fact in Galloway, under cover of Henry’s overlordship, William had gone far to reassert an authority shaken in the aftermath of the débâcle of 1174. The native rulers, Gilbert and Uhtred, hitherto held west of the ancient frontier of Galloway on the Urr, had then destroyed both the castle of Walter of Berkeley astride the river and Malcolm’s castle base at Dumfries, expelling the royal bailiffs from Nithsdale. The number of English settlers like Walter was small. Some had been introduced by Uhtred himself from Cumbria, Uhtred having married the daughter of the lord of Allerdale. Gilbert and Uhtred’s father, Fergus, had himself married an illegitimate daughter of Henry I and founded the Premonstratensian house at Soulseat. Galloway was changing. Yet the brothers probably exploited widespread resentment. Even today the motte at Urr (the largest in Scotland), sticking up like a great thumb, seems an awesome intrusion in the landscape. King Henry’s anxiety over security in the north inevitably led him to monitor events in Galloway. It was the recruiting ground for violent soldiers, notorious for their atrocities during the Scottish invasions of England. Events in the province impinged on Cumberland and Carlisle. Henry’s policy was to use King William to discipline the native rulers, much like the Lord Rhys in Wales. Thus in 1176 William took an army into Galloway and brought Gilbert, who by this time had murdered Uhtred, south to swear fealty to King Henry. When a succession dispute arose following Gilbert’s death in 1185, Henry himself marched to Carlisle and made the new ruler, Uhtred’s son Roland, agree to stand to right ‘in the court of the king of England’ for the lands claimed against him by Gilbert’s son, who was later compensated with the earldom of Carrick. Roland also swore fealty to Henry and his heirs, this ‘by command of the king of Scotland’. Henry was not, therefore, trying to prise Galloway from its tenuous place within the Scottish realm. Indeed, with Henry’s acquiescence William rebuilt his castle at Dumfries and saw Walter of Berkeley restored to Urr.
William’s harmonious if humiliating relations with King Henry also allowed him to deal with problems in the far north of his realm. There royal Scotland, the Scotland of royal castles, thanages and sheriffdoms, effectively ended with Moray. Beyond that stretched two provinces with extensive Norse settlement, namely Ross, with its great timber resources, and Caithness, whose earl held Orkney and Shetland from the king of Norway. The bishoprics of Ross and Caithness were part of the Scottish church in 1192 but the king of Scotland’s overlordship over the provinces was loose indeed. Worse, Ross was now to become the base for a series of intermittent but dangerous challenges to the throne which lasted down to 1230. They were mounted by the MacHeths and the MacWilliams, the descendants of Malcolm MacHeth and William fitz Duncan. Malcolm MacHeth (see above, pp. 179, 211) had died as earl of Ross in 1164, after which no successor appears in the earldom, which suggests the district’s independence. The family, perhaps in some way throneworthy, had caused trouble since the 1130s. The MacWilliams were certainly ‘descended from the ancient line of the Scottish kings’, as the Barnwell annalist put it, and had also nothing to do with the dynasty of King Malcolm and Queen Margaret which had introduced the Anglo-Normans. Instead William fitz Duncan was the son of the King Duncan killed in 1094, the son of Malcolm III’s first marriage, not his second to Margaret. If William fitz Duncan had been turned by David’s patronage into a pillar of the throne (see above, p. 183), his son Donald emerged in the 1180s as its greatest challenger. He enjoyed, according to Howden, considerable support from Scottish earls and barons, and exploited resentment against the Anglo-Norman court. It was while explaining the MacWilliam risings that the Barnwell annalist remarked on how ‘the modern kings of Scotland’ had reduced the Scots to servitude, counting themselves French and keeping only Frenchmen in their household.
The trouble in the 1180s centred on Ross and Moray, to which Donald may have had a claim through his mother, and was finally ended by the killing of Aed, grandson of MacHeth, in 1186, and of Donald himself in the following year. His death seemed to contemporaries to mark a turning-point between years of disturbance and the ‘great peace’ that followed. Certainly it was not till 1211–15 that the MacWilliams and MacHeths again caused trouble. In Moray, William built a new castle and burgh at Nairn to control the crossing to Cromarty, and in the 1190s and 1200s he was able to assert his power in Caithness (see below, p. 256). He had therefore triumphed over adversity. In 1188 he led a unified resistance to King Henry’s demanded for taxation to support his forthcoming crusade. He was soon to throw off the English yoke altogether.
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King Henry’s power in Britain and elsewhere had depended on the rebuilding of his revenues in England. His reign also saw the foundation of the common law. For that reason more than any other it constituted a watershed in English history. At the heart of the common law lay new procedures for civil litigation which ultimately transformed the nature of kingship, government and society. These have to be placed in the wider context of the structure of courts in Henry’s day and his insistent concern with the punishment of crime and the maintenance of order.
Henry II’s own court, held in his presence whether in England or overseas, remained the forum for great political cases, notably those between powerful barons, or between a baron and the king. But for less important and more routine cases other courts, no less the king’s though not held in his presence, existed. At the centre the chief officials of the exchequer, increasingly sitting at Westminster, did not merely exact and audit the revenue, they also heard civil pleas. They had done that intermittently under Henry I. Now, at least from the late 1170s, they did so on a regular basis. Alongside the exchequer, and carrying a far heavier load of business, were the king’s judges sent on visitations (or eyres) around the counties. There had been judicial eyres under Henry I but those of Henry II were far more impressive. Firstly, they were much more frequent. In the 1120s the judges seem to have covered the country gradually. From 1174–5 onwards they travelled the whole of England every other year on average. This was achieved by the regular commissioning of nationwide or ‘general’ eyres, with the entire kingdom divided into circuits in which separate panels of judges operated simultaneously; this differed from the practice under Henry I where the judges confined their activities at any one time to one particular locality. Secondly, the eyres of Henry II did far more business and in a far more regular and systematized way. This was partly because the eyres as a result of being so frequent were able to take over from sheriffs and local justiciars the hearing of the pleas of the crown, thus giving the king a much tighter control over law and order.
The pleas of the crown, as we have seen, had their origins in Anglo-Saxon times, and included all major offences (‘felonies’) against persons and property – homicide, robbery, serious theft and assault, arson, rape – pleas now for the first time actually described as ‘criminal’ as distinct from ‘civil’: Glanvill or The Treatise on the Laws and Customs of England, written c. 1189 by the legal circle around Ranulf Glanvill, Henry’s chief justiciar, divided all pleas into those two categories. In asserting his control over ‘the peace’, Henry faced one developing problem. This lay in the way that kings since the Conquest had often, as a form of patronage, conceded control of hundreds (and the profits of their courts) to great lords, lay and ecclesiastical, sometimes recognizing a de facto situation which had existed before 1066. The jurisdiction of these courts was over small debts, and fights and brawls which did not involve a breach of the king’s peace. Such cases of minor disorder might also be heard in the manorial court, with whose jurisdiction there was a great deal of overlap. The Norman kings, like their predecessors before 1066, had also granted lords the right to have private gallows on which to hang thieves caught red-handed, a liberty (‘infangenthief’) which could be attached to either a manorial or a private hundred court. In a private hundred it might be the lord rather than the sheriff who held every Michaelmas the ‘view of frankpledge’, which meant checking to see that the peasants were in their tithing groups, a lucrative exercise since the groups could be subject to all kinds of amercements. This was essentially ‘magistrate court’ jurisdiction, which was why kings were prepared to give it away. Yet it still meant that lords gained powerful social controls over the local population and played a significant part in the maintenance of the peace. Henry was determined to supervise what was going on. A government measure in 1166, the ‘Assize of Clarendon’, laid down that the sheriffs were to enter all private courts, even if held in castles, to check personally that the peasants were in their tithing groups. At the same time, no one was to prevent sheriffs entering their lands and jurisdictions to arrest those accused or outlawed for serious crime.
All this was part of major drive in 1165–6 designed to ‘keep the peace’. Those accused of serious crimes, if caught, were to be tried by the ordeal of water, an old procedure, but now apparently to replace all others. Those convicted were to lose a foot; ten years later, by the assize of Northampton ‘for the sake of stern justice’ they were to lose a hand as well. Even those acquitted were to leave the kingdom, if they were of ill-fame. The accusations which initiated the procedures were the responsibility of juries composed of twelve knights and freemen from each hundred. Such juries of presentment or accusation can be traced back to Anglo-Saxon times. What seems to have been new in 1166 was the king’s insistence that they were to operate throughout the land.
Down to the 1160s, in the absence of itinerant justices the sheriffs and local justiciars heard the pleas of the crown, but they did not always prove very efficient. So in 1166, by the Assize of Clarendon, Henry placed the new procedures under the justices in eyre. Once their visitations became regular in the 1170s the whole work of trying cases of serious crime came to depend on the connection established between the king’s judges and the local juries. On it, too, depended the maintenance of royal rights, about which the jurors had also to answer a whole series of questions. What lands, for example, should be in the king’s hands through wardship or escheat? All this was crown plea business. The questions (known as the ‘Articles of the Eyre’) grew in size from one visitation to the next and came to embrace the malpractices of local officials, both royal and baronial. The eyre thus became a powerful weapon in the king’s battle to maintain his authority in the localities.
Although much is obscure about how Henry’s measures worked in practice, they do seem to have brought about significant changes. The ordeal, instead of being a procedure of last resort, now appears to have replaced other customary methods of arriving at guilt or innocence, such as attempts to establish the facts, and where these were unclear, the swearing of oaths. The usual punishment, however, remained death by hanging. The ordeal might be either by hot iron or by water, in both the idea being that it was God who gave the verdict. In the ordeal by water, those accused were bound and lowered into a pit full of water. If they sank they were innocent, and if they floated, guilty, in the one case being in effect embraced by God and in the other rejected. The procedures were presided over by the ecclesiastical authorities. It was when they were forbidden to participate by the Fourth Lateran Council in 1215 that the ordeal was replaced by trial by jury. Up to that point there was a curious contrast between the rationality of the new procedures for civil litigation introduced by Henry, and the irrationality of the criminal. As for the methods of accusation, the generalization of the juries of presentment seems to have ended prosecution by sheriffs and local justiciars, but prosecution by individuals continued (as intended). Whether in fact the maintenance of law and order was better served by all these measures is unknowable. Statistics from the thirteenth century (see below, p. 483) are not encouraging. What is certain is that the eyres began to raise large sums of money for the king: by the 1240s the proceeds of a nationwide visitation amounted to over £20,000, with judges sending back regular reports about how much they were making. Two-thirds of the proceeds from an eyre came from the crown plea business – from amercements imposed on the juries of presentment for such things as concealment and false presentation, from the murdrum fine paid by the hundred (see above, p. 102), and from the chattels of convicted or outlawed criminals, individually small (since most criminals were poor) but collectively lucrative. The kings had long been entitled to the chattels forfeited through crown pleas, but in 1166 Henry made a point of stressing that they were his and subsequently took measures to ensure that he got them.
Financially oppressive, the crown pleas side of the eyre was highly unpopular. The civil side was different, and it was there that the really great leap forward took place. What made the eyres of Henry II decisively different from those of Henry I was that they heard civil pleas on an altogether novel scale. This was thanks to a series of new legal procedures called assizes which brought such pleas before them. These new procedures lay at the heart of the common law. The most important of these new assizes were mort d’ancestor: a remedy for a freeman denied succession to his inheritance; and novel disseisin: a remedy for freeman disseised (that is, dispossessed) of property unjustly and without judgement. Neither of these assizes were concerned (at least in the first instance) with questions of ultimate right to land. Novel disseisin turned on whether the plaintiff had been dispossessed without judgement of a court, not whether he had any right to the property in the first place. This greater question of right was decided by another new procedure, that of the grand assize. (Mort d’ancestor, novel disseisin and other similar procedures were called, in contrast, the petty assizes.) Mort d’ancestor was introduced in 1176 and the grand assize in 1179. Novel disseisin in its final form may well have come some years later. The key point is that all these assizes were well established by the end of the reign, when their workings were explained by Glanvill.
Grand assize was a complex procedure. The petty assizes, by contrast, all ran on straightforward and very similar lines. In novel disseisin, for example, the plaintiff, having suffered disseisin, went or sent a messenger to the king and obtained from the chancery the writ which initiated the action. If the king was overseas, this would be issued by the chief justiciar. The writ was addressed to the sheriff and ordered him to bring a jury of twelve free and law-worthy men before the king’s justices on their next visitation to say, having viewed the land, whether the plaintiff had indeed been disseised unjustly and without judgement. The sheriff also returned the writ itself to the justices (hence it was a ‘returnable writ’) so that they could see, by reading it, what the case was about. On the appointed day the jurors gave their verdict, and if it was for the plaintiff the judges gave judgement in his favour and issued a writ in the king’s name ordering the sheriff to put him back in seisin. They also, at least in later practice, awarded damages.
There were, of course, problems here. Sheriffs might be inefficient and juries corrupt. Obtaining the originating writ was clearly more expensive, in terms of time and money, the further one lived from the king’s or justiciar’s usual itinerary in the south. Yet the new procedures were entirely voluntary. That people throughout the country came to use them in such growing numbers shows how valuable they were. The procedures dealt with issues that were central to a society based on land and over whose possession there was so much dispute. The politics of Stephen’s reign had seemed nothing but a universal dispute over seisin and inheritance. Now there was an alternative to the round of violence which might be triggered by self-help. This implies the new legal procedures were significantly better than the old and, with due allowance for lack of evidence, this was indeed the case. Their distinctive features were as follows:
1. There had always been legal actions over disseisin and inheritance, but each of the new actions dealt with a clear and distinctive problem, defined by the question to the jury. Has A disseised B unjustly and without judgement? Did A die possessed of the property ‘in fee’ and is B his nearest heir? It was thus evident to plaintiffs what the actions were about and which one suited their needs. It was equally clear to juries what they had to decide.
2. There was a new emphasis on speed in reaching a verdict, an emphasis which in Glanvill’s account of them ran explicitly through all the assizes, reaching a climax in novel disseisin where the defendant was not allowed a single essoin, that is excuse for non-attendance, and the jury gave its verdict whether or not he appeared.
3. The verdict was by a jury, the rationality of which Glanvill specifically contrasted with trial by battle, the means by which such cases had sometimes been decided in the past.
4. The cases came before the king’s judges, as opposed to the county court or the honourial court of a lord, a key advantage if the lord himself had committed the disseisin or had kept the plaintiff out of his inheritance. The king’s judges, moreover, now had a far more important role than in the past. Under Henry I those on eyre had merely presided over civil cases, with judgements being given by suitors to, that is those attending, the county courts. Under Henry II the judges gave the judgements themselves after receiving the verdict from the jury. It was the new assizes, excluding the county suitors and relying on the verdict of a small jury selected by the sheriff, which opened up this role. The uniformity of the assizes also invited the judges to formulate standard rules of procedure (Glanvill is full of them), which did much to create the common law, something impossible in the past because of the multiplicity of procedures followed by the county courts.
5. Before the new assizes kings from Anglo-Saxon times had issued writs commissioning juries to hear civil cases. But they did so ad hoc as acts of favour, perhaps sometimes in return for large sums of money. Now the writs which originated the new assizes were issued routinely and at low prices. Quite probably the 6d. per writ, for which there is later evidence, was the usual fee from the start. With a day’s wage for a labourer about a penny, that was a sum within the reach of the humblest freeman. More than anything else it was the low cost and routine issue of the writs (called writs de cursu, ‘of course’) which made possible the great expansion in royal justice.
Writs, sheriffs, juries deciding civil actions, and the concepts of seisin, inheritance and right had all existed long before Henry II. Henry I had been determined to supervise the jurisdiction of private courts and, if necessary remove cases from them (see above, p. 157). But hard creative thinking was needed to put all this together to form procedures of such supreme utility. The idea of ‘utility’ indeed ran throughout Henry II’s administration. As the author of the Dialogue put it, he wrote of things not theoretical but useful (non subtilia sed utilia). Likewise Glanvill when discussing the grand assize declared that the judges should always strive to make it ‘more useful and equitable’ (utilius et equius). Utility and equity were closely linked and lay behind many key features of the assizes, including the numerous rules governing procedure and the way judges, on eyre and at the exchequer, were by the end of the reign recording the cases they heard on rolls, the beginnings of the plea rolls.
Essential to the running of Henry’s system of law were his judges and in particular a core group of under twenty who served either on several eyres or for long periods at the exchequer, sometimes both. It was these men who must have done the thinking which made the developments possible. Roughly half were clerks and three were university masters. Certainly the development of law under Henry II, like the Becket dispute, is incomprehensible outside the wider developments of European learning. Knowledge of Roman law both sharpened the distinction between right and seisin and provided Glanvill with his categories of criminal and civil pleas. The new learning was apparent in the whole drive to categorize and record seen in the writing of Glanvill and the introduction of the plea rolls. To this academic knowledge was joined a wealth of practical experience brought by the lay contingent among the judges. Ranulf Glanvill’s father was a Suffolk knight who had spent long years attending the local courts. Glanvill himself had held several sheriffdoms (and captured the king of Scots in 1174) before moving to the higher reaches of the royal service and ultimately the justiciarship.
Henry II himself, according to Ralph of Diss, took immense care over the selection of his judges. He may well have participated in their discussions about the new civil procedures. He also showed great skill in settling difficult lawsuits (according to Walter Map), discussed the precise wording of charters with his ministers and devised formulas to get round legal problems. His general concern for peace and justice drove on the developments in both criminal and civil law. According to William of Newburgh, he was ‘extremely studious’ and a ‘fitting minister of God’ in punishing malefactors and preserving the public peace. Ralph of Diss saw him as ‘the father of the English’, ‘more and more solicitous of the common health’ and ‘most intent on exhibiting justice to everybody’, precisely what the new assizes did. Well might Glanvill describe the grand assize as a ‘royal benefit granted to the people’. Henry was certainly well aware that justice was profitable, but that was not a major motive behind the assizes. The small individual sums paid for the writs went to the chancellor; the value of the amercements was significant but not overwhelming.
The assizes did, however, help to enhance royal authority, chiming exactly with Henry’s determination, much like his grandfather’s to maintain a direct relationship with under-tenants, and assert his authority over private courts and jurisdictions. If a dispute over seisin or inheritance was between tenants of the same lord, or between a tenant and his lord, then the new procedures opened up the king’s court for the under-tenants involved, taking the case out of the honourial court of their lords. The king also developed a direct relationship with the under-tenants by using them to staff the juries on which the new procedures depended. Though certainly welcoming the gradual flow of business into his courts, Henry’s aim was less to subvert than supervise private jurisdiction. If the action of novel disseisin was aimed particularly at lords who had been disseising their tenants, the implication was that the latter should secure judgements in their courts before doing so. It was likewise to monitor rather than undermine that the legal rule described in Glanvillwas established, namely that anyone wishing to bring a property action in the court of a lord had to commence his case with a writ from the king, the ‘writ of right’ ordering the lord to do justice in the case, and declaring that the king would, if he failed to do so.
Glanvill resonates with pride at the procedures it describes, yet it can scarcely have anticipated the sheer scale of their success. On the Wiltshire eyre of 1194, the first eyre for which records survive, there were fourteen actions of novel disseisin and fourteen ofmort d’ancestor. On the eyre of 1249 there were respectively 105 and 109. And there would have been similar increases in every county. These procedures had proved immensely popular, and they had come to be surrounded by many others which worked on similar lines. As Glanvill remarked, ‘it is easy to formulate writs to deal with different matters’, thus pointing the way forward for the whole future of the common law. That law came to be viewed increasingly as a series of separate procedures each originated by its own ‘original’ writ. By the time of Glanvill there were already fifteen such writs. By 1272 there were over sixty-five.
Absolutely central to the success and significance of the procedures was the range of their appeal, an appeal essentially to sections of society beneath the baronage. The litigants came from the county gentry, from the kind of middling under-tenants who staffed the hundred juries (see below, p. 411), and from the free peasantry. The amounts of land involved were often very small: 60 per cent of identifiable properties in cases on the 1240 Suffolk eyre were under ten acres in extent. More than anything else, the growing number of litigants using royal procedures before royal judges widened the scope, enhanced the utility and ensured the future of royal government. Magna Carta in 1215 condemned much of what Angevin kingship had done, but welcomed the petty assizes of Henry II.
Whatever Henry’s intentions, in the long term the effect of the assizes was certainly to weaken a baron’s control over his tenants. Although as early as the reign of Henry I the latter had sometimes challenged and escaped the jurisdiction of the honourial court, they could now do so much more easily. Mort d’ancestor did not create hereditary succession for under-tenants (many fees had been hereditary since their creation after the Conquest), but it certainly made it more difficult for lords to deny it. Likewise, novel disseisin made lords less ready to discipline their tenants by seizing their land (having to go through a tedious court process or face novel disseisin). The earl of Warwick when he disseised one tenant, Richard of Claverdon, for default of service did take the precaution of getting a judgement of his court first, but Richard still brought and won an action of novel disseisin against him before the eyre at Coventry in 1221, and the earl was amerced £27. That lords resented the interference is shown by the clause in Magna Carta which prevented cases being removed from their courts by the use of a particular writ, praecipe. Yet ‘feudal’ jurisdiction was still important in the thirteenth century, and continued to stand with other pillars of baronial power. (For further discussion, see below, pp. 403–10.) In Henry’s reign and those of his sons, what seemed more serious for the barons (or at least those out of favour) was that, when litigating against each other, they were excluded from the benefits of the cheap, regular, standard-form litigation offered by the assizes. This was because as tenants-in-chief they were subject directly to the jurisdiction of the king and had to litigate in his presence. While judgement ought ultimately to be by their ‘peers’, that is their social equals and thus their fellow barons, there were all kinds of traps the king could spring before a case got that far. This helps to explain a paradox in Henry’s reputation. On the one hand he was praised by contemporaries for his zeal for justice, on the other condemned for the way he delayed and sold it. The contrast is between the routine cases involving unimportant men covered by the great bulk of the assizes, and those between great men where ‘justice’ was really a branch of patronage and where it might indeed be sold or (for good prudential reasons) delayed or denied; hence the way Henry dealt with the disputes arising from Stephen’s reign, favouring some barons, disfavouring others. Henry’s successors acted in a similar fashion, and were ultimately brought to book by Magna Carta.
If the baronage were prevented from using the new procedures, at least when litigating against each other, so were a proportion of the peasantry. Indeed it was worse than that. One result of the measures was decisively to depress a section of the peasantry’s legal status. The rigid dividing line between the free and the unfree (discussed above, p. 53) was very much the product of the new assizes, because the king’s judges decided to prevent peasants who performed labour services from using those assizes against their lords. To do so they deemed such men unfree villeins and laid down that the new procedures were only open to the free. For all matters connected with their land and services (though not their lives and limbs) unfree peasants were now legally subject to the jurisdiction of their lords. Intentionally or not, the latter had received a quid pro quo for the new assizes being open to their free tenants. For a significant proportion of the population, the common law was not common at all.
This was not something that bothered contemporary commentators on the legal system. Indeed it seemed absolutely right. So did the fact that women, even when free and noble, were certainly not equal under the law (see below, pp. 416–17). In the thirteenth century contemporaries spoke increasingly and without apology of ‘the common law’, by which they meant the legal procedures common to the whole kingdom both in terms of their form and their general applicability. These ‘general’ laws and customs of the king’s court were the avowed subject of Glanvill, not the procedures of other courts (county, hundred and private) for these were, as Glanvill said, simply too numerous to write down. The foundations for the common law had been laid in both the Anglo-Saxon period, with the royal monopoly over cases of crime, and in Anglo-Norman times, with the beginnings of the eyre and the general customs of feudal tenure. But it was under Henry II that the structure really came into being.
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Henry loved his sons and quickly forgave their rebellion. He still wanted, as Ralph of Diss observed, to make them ‘lords of great nations’ whose peoples they would govern ‘with moderation’, terrorizing tyrants and destroying enemies. Richard was restored to Aquitaine where he suppressed local revolts, in the process performing extraordinary feats of arms. In Brittany, Geoffrey (after he at last married Constance in 1181) enjoyed considerable independence and presided over important administrative reforms. The Young King went on a joyous round of tournaments and was praised by Henry for his exploits. He was also involved in the government of England and (in 1177) helped make good his father’s claims to the great castle of Châteauroux in Berry. In the late 1170s, when he also made a bid for Angoulême, Henry seemed as assertive as ever. As he told the Young King, he had lost nothing of his rights when he ruled alone, and it would be shameful to lose them now when he had sons to rule with him.
Yet in the last decade of his life Henry mellowed. He declared he would no longer appoint prelates for other than spiritual reasons, and made the saintly and courageous Carthusian, Hugh of Avalon, bishop of Lincoln. According to William of Newburgh, he became increasingly sick of war and anxious not to stir it up. Yet peace he did not have. In 1183 friction between himself and the Young King and between the latter and Richard exploded in a violent conflict which was ended only by the Young King’s sudden death on 11 June 1183. The death of Geoffrey in 1186, leaving an infant child, Arthur, by his wife Constance as heir to Brittany, meant that of Henry’s sons only Richard and John survived. Richard now wanted to be recognized as heir to England, Normandy and Anjou, but Henry, after his experiences with the Young King, would not indulge him – or not unless Richard surrendered Aquitaine to John, which he utterly refused to do.
These problems might have been contained had it not been for the involvement of the king of France. Here Henry found himself faced with a new and dangerous antagonist. Louis VII had died in 1180 and been succeeded by his fifteen-year-old son Philip, one day to be called Augustus. Philip was wily, unscrupulous, and unwaveringly clear about his main objective: to increase his power and diminish that of Henry II and his successors. In the short term he wished to defeat Henry II’s challenge in Berry and to recover Gisors and the Norman Vexin. Ultimately, in a reign which lasted until 1223, he was to destroy the Angevin empire altogether. Philip naturally sought to weaken Henry by championing Richard’s demands, demands given an added impetus by a new factor which was soon to transform European politics. This was the overwhelming imperative of the crusade.
Henry II’s attitude to the crusade had been sympathetic but non-participatory. He sent considerable sums of money to the Holy Land but refused to go there in person, even in 1185 when he was urged to do so by the patriarch of Jerusalem. Two years later these hesitations were swept away by Saladin’s crushing victory at the battle of Hattin (3 July 1187) and his capture that October of Jerusalem itself. Henry took the cross, as did Richard and King Philip. Richard, however, was determined to have the succession settled before his departure. When it was not, he defied his father and formally threw in his lot with Philip, who in November 1188 recognized him as heir to the Angevin dominions. In May 1189 the two of them drove Henry from Le Mans (his birthplace) and early in July forced him to agree a humiliating settlement. Henry cursed the traitors who had deserted him (they now included John) and vowed revenge. But the poison from an ulcer was gradually spreading through his body. He retreated to Chinon and died there on 6 July. A few days later he was taken down the river Vienne for burial by the nuns at Fontevraud.
Clerical writers found it easy to explain Henry’s tragic end. It was surely God’s punishment for his persecution of Becket and his initial refusal to join the crusade. Other groups had their own grievances: peasants excluded from the common law; magnates denied justice (or what they thought was justice); the numerous victims of the forest law. Yet chroniclers like Ralph of Diss, William of Newburgh and Ralph of Coggeshall also expressed immense admiration for the king. Again and again Diss pictured him returning to England having secured peace throughout his dominions, dominions which stretched from the mountains of the Pyrenees to the Breton ocean and from there to the borders of France. ‘The whole of human fate seemed to respond to the nod of the king.’ Here also was a king with a real sense of care for his kingdom, who had restored its mutilated frontiers, recovered the rights of the crown, restored peace and order and built the common law. His successor was to be very different.