An introduction sets the scene for England, the British Isles and northern France in the early C13th. Then we get 16 chapters, each prefaced by a quote from the Great Charter itself. An appendix provides the complete text of Magna Carta, rendered into modern English.
The early C13th was a period of expanding trade, technological and institutional innovation – it saw the founding of the Universities of Oxford and Cambridge, the great age of cathedral building was well underway – and of intellectual ferment., as Latin Christendom wrestled with Aristotelianism and other intellectual and scientific imports from the Islamic world and Greek Christendom. We have much more suriving from this period than that of the earlier book: the authors point out that there are far more survivals in England of the stone building from 1215 than of the wooden buildings of 1000 (p.10).
This was an era when being accompanied everywhere you went was a sign of status. The tasks of a chamberlain included supervising his lord’s bath, inspecting the privy before he used it and handing him well-pressed hay to wipe his bottom. Crude humour was enjoyed at the highest circles – the records show that one Roland le Pettour (‘the farter’) was rewarded with an estate in Suffolk for ‘leaping, whistling and farting’ before the court as Christmas entertainment. Meanwhile, a seriously ill Archbishop of York was prescribed sex as a necessary restorative. A young woman was supplied to his private room (his secretum). Inspection of his urine next morning revealed that he had not partaken of his prescribed remedy: he confessed he had not broken his vow of celibacy but had pretended to do so to spare his doctor’s feelings (Pp30-1).
This was a sun-up-to-sun-down society. The stables and the lord’s bedchamber would be lit at night, but nowhere else was. With the shutters down, rooms could get very dark, giving moralists a field day for warning moral parables. The porter had the heavy responsibility of ensuring no unauthorised persons entered. The provision of sexual services to overwhelmingly male household staff complicated this somewhat. Since proximity to the king was so valuable, there was effectively a royal brothel incorporating a dozen demoiselles to service the king’s household separated from wives and family. (Nowadays, the royal family has generally gay staff, keeping things largely “in-house”.) At Christmas 1204, the wife of Hugh de Neville, one of King John’s household officials and gambling companions, offered the king 200 chickens to sleep one night with her husband: the king accepted (p.32).
Poor people had fewer children than did those better off (in the reverse of modern patterns: but unwanted mouths no longer threaten starvation). People generally had good teeth and the average height was 5’7” (170cm) with the typical farming family having three children. Most houses had two rooms with an attached croft of up to an acre for growing vegetables, fruit and herbs. Ten acres could comfortably feed a family with enough surplus to pay rents, dues and tithes and purchase household items. It was those with five acres or less who were threatened with starvation when famine struck. Male farm animals were generally castrated to encourage fattening or, in the case of oxen, placidity. Still, farming was hard work: the twenty acres a modern tractor could plough in a day would take them 40 days (Pp34-35).
It was a period of urbanisation – from 1066 to 1230, more than 125 towns were founded, making it the period of the fastest rate of town-creation in English history. People were already contrasting English prosperity with Irish poverty. Towns were ‘boroughs’, places where people were granted by the local lord various freedoms and exemptions from dues, the aim being to attract settlers and encourage economic activity. (The modern term is ‘enterprise zone’.) This led to acceptance that serf who could live in a borough for a year and day became free – hence the saying that “town air makes you free” (Pp52ff).
Silver was the medium of exchange, and the discovery of silver lodes in Germany, the Alps and Tuscany expanded the money supply. It was not until the C19th that the amount of silver minted per year in the C13th was regularly exceeded. The new English “Short Cross” silver penny had marks which made it easier to cut into halves and quarters (‘farthing’, fourths) if you wanted smaller denominations. London became the largest city in North-Western Europe after Paris (Pp56-7).
London also became a place of convenience foods, disastrous fires (such as the London Bridge fire that may have killed 3,000 people, which led to an ordinance banning thatched rooves) and the sons of respectable families engaging in criminal gangs. King John levied customs dues on trade (both imports and exports), the surviving records for which show some of the new towns were already very successful. Great fairs, some of which lasted weeks, were free of residency restrictions, making them attractive to foreign traders, while the fees that could be charged made them valuable to their local lords (Pp60ff).
A well-brought up young aristocrat would play chess (a simpler version than modern version) and music. This was a period when most towns could boast a school, which ambitious parents might be able to pay the fees for: monasteries no longer had a monopoly of formal learning. Most people, however, learnt from their parents. As they got older, brothers and sisters would stop sharing beds, the boys would help their father plough, reap, building, minding the sheep and cattle, girls would help their mothers cooking, baking, cleaning spinning, and weaving (Pp76-7).
Even beyond children-as-pension-plan, marriage represented an exchange of services; one that went back to the males-hunt, females-gather of foraging times.
This was also the period of growth of universities. For those with an interest in law, the Bologna law school was famous. Roman law had limited application in England (even after Henry II’s creation of the common law: via royal judges who offered judgements based on the common – i.e. shared – elements of Norman, Anglo-Saxon and Danish law that England had previously operated under), so most English students who studied overseas went to the University of Paris – over a third of its masters whose origin were known in the period 1179-1215 were English. Some English towns – Exeter, Lincoln, London, Northampton and (pre-eminent) Oxford – had schools of advanced study, though not with the status of Paris or Bologna (Pp82-3).
The story of how the University of Oxford was created sounds very modern in some ways, very medieval in others. In 1209, some (male) students were sharing a group house. One of them accidentally killed a woman in the house, and fled. The Mayor of Oxford, unable to find the culprit, apprehended his three housemates; who were taken out and hanged, on the king’s orders. The entire body of students and masters – about 3,000 people according to a chronicler – left Oxford in protest. Some went to Cambridge, others to Reading. The dispute dragged on for years, the students and masters forming themselves into a corporation (from the Latin corpora, body: the English word university comes from the Latin universitas, meaning corporation). Finally, in 1214, the borough officials agreed to do public penance (admitting fault), regulate the price of food and rent and pay money to the university for poor students: the institutional division of Town and Gown thereby being established. Oxford re-opened for business as a university town, with charitable donations later in the C13th creating the first college (Merton). Meanwhile, those who had decamped to Cambridge found it so comfortable that they stayed (Pp83-4).
The classic subjects for advanced study were law – for those seeking well-paid careers – theology – for those interested in thinking through problems for their own sake – and medicine. For the last, Montpellier and Salerno were the medical schools with the greatest reputation, the latter owing much of its standing to a converted Tunisian Muslim, Constantine the African, whose medical text was famous (Pp84ff).
Regulation of the forests was a major source of revenue – sending around a forest commission to discover and fine unauthorised usage could be very profitable to the Exchequer: one of Henry II’s forest commissions raised 12,000 pounds when the annual royal revenue rarely went above 20,000 pounds. These exactions and controls were extremely unpopular. Richard I found that offering to declare an area not a royal forest was a source of revenue. Local areas organising together to petition and pay encouraged the development of county communities was part of the lead in to Magna Carta and eventually lead to Henry III’s ministers issuing a Forest Charter in 1217 (Pp126ff).
This was the period when the Church was increasingly controlling marriage law (marriage only became a sacrament in the C11th), law having previously been a purely secular affair. In 1200, a Church council at Winchester decreed that a proposed marriage must be proclaimed three times. But marriage was an unusual sacrament – it required no priest. Exchange of vows by the couple was sufficient: God was witness enough. The Church originally banned marriages between those related to the seventh degree (i.e. shared great, great, great, great grandparents). This made so many marriages notionally incestuous, that the Lateran Council reduced it to four degrees (i.e. sharing great, grandparents): in 1537, the Church reduced it to two degrees of separation for Amerindians, in 1897 for blacks and in 1917 for the general Catholic population (Pp146-7).
We have reason to be grateful for the Church’s restrictions – by banning cousin marriage, the Church foreclosed the lineage structures of tribal societies and forced more investment in the wider provision of public goods.
There were no police forces as such. If a crime was committed, the victim had to raise a hue-and-cry, to which able-bodied men were required to respond to the utmost in their power (in Latin, pro toto posse suo: hence the posse so beloved of American Westerns) to chase and apprehend the accused. Most crimes were dealt with by the local ‘hundred’ courts of the sheriff or his deputies, more serious crimes went to the county court:
This, if a woman was raped, she had to go at once to the nearest vill, show her injuries, blood and torn clothes to reliable men there, then go to the hundred bailiff and do the same, and lastly proclaim it publicly at the next meeting of the county court (p.186).In a familiar pattern, crackdowns on crime led to political disputes and institutional change. Henry II cracking down on criminals who hid behind clerical status led to his infamous clash with Thomas a’Beckett. Another crackdown, beginning in 1166, transformed English law with a public prosecution service, the growth of a legal profession, the establishment of a central court of justice in Westminister and the system of travelling royal judges. This was the beginning of a common law rather than law as local custom. The only provision in Magna Carta which asked for more government, rather than putting limits on what the king could do, was Clause 18 where the king promised:
to send to each county four times a year two judges whose job it would be, sitting together with four knights from that county, to hold assizes at the county court (p.187).The re-issue of the Great Charter in 1217 reduced it to a more realistic once a year, though that was still beyond the organising capacity of the government. Still, it was something the government was doing that people wanted more of: Clause 18 also covered using royal courts to settle property disputes with writs (i.e. royal commands) of novel disseisin (a claim of wrongful dispossession), mort d’ancestor (a claim to be the rightful heir) and darrein presentment (dispute of patronage over churches) (Pp187-8).
The Magna Carta’s most famous requirement of requiring conviction by a jury of one’s peers might limit the power of royal judges but the demand for ways to deal with crime and property disputes was clearly strong.
Trial by combat (a form of appeal to God) was still used, with paid fighters being accepted part of the proceedings. Men and women, being one flesh, the only appeal of homicide a wife could make was for the death of her husband (Pp190-1).
Henry II’s 1166 reform required that counties empanel “juries of presentment” (the forerunner of American grand juries) to prosecute crimes against those believed to be guilty. There was no compensation paid to victims in such prosecutions, but it did mean that crimes by those too poor to pay compensation were subject to the machinery of the law. The most common sentence was outlawry, when the accused fled and were sentenced in absentia. The Kings Bench began to sit permanently in Westminister, to deal with the growth of cases, and legal specialists grew up to help people plead (Pp192-3).
Juries could be asked whether an accused was to be put to trial by ordeal. This path was stymied by the Fourth Lateran Council, on solid theological grounds:
The problem was, however, that the basis of the ordeal was that God was required to work a miracle every time he was asked to do so, but since a miracle was surely a free act of God, this was theologically unacceptable unless the ordeal was, like the Mass, a sacrament (p.196).But it had not been instituted by the Church and had no Biblical bases, so most educate churchmen had come to conclusion that trial by ordeal was wrong, hence the Lateran Council’s decision prohibiting priests from taking part, thereby taking the point out of such ordeals. It also meant giving up a lucrative right (priests were paid for their blessing and preparation services) that had increased the role of the church in local life.
The Church’s disavowal of trial by ordeal created a problem for judicial systems – how to deal with the hard cases? On the continent, increasing adoption of Roman law encouraged the search for confession – under Roman law, the best of proofs – and so to torture. In England (and Denmark) increased use of juries was the response instead. Torture became the province of cases of alleged treason and “pressing” (piling up heavier and heavier stones until the accused entered a plea for trial). If one believed one was going to be found guilty, and put to death anyway, death by pressing might be preferable if it meant that your family kept your property, as in the case of Giles Cory in the Salem witch trials of 1692 (Pp198ff).
The English disavowal of torture as a way of getting evidence went as far as the common law developing strictures against self-incrimination – the Crown had to prove its case from evidence. One wonders if British empiricism may have developed out of these legal resonances, just a Continental fascination for more deductive and phenomenological systems of philosophy may have been connected to Roman belief in confession-as-best-proof. I have long believed that the English-cum-British reputation for fair play (which dates back centuries) was connected to only the holders of titles being noble – their spouses and children were all commoners: giving the nobility an interest in how the law treated commoners absent from continental systems which treated the entire family as noble, and so were a legal group apart. I have also argued that the British reputation for honest government (which was largely a C19th creation) flowed from decades of abolishing official privileges, monopolies and discretions. Law is about patterns of thinking and their application, so why should it not affect patterns of thinking (and consequent behaviour) beyond the law and matters legal?
This review will be concluded in my next post.