The Edge of the World: How the North Sea Made Us Who We Are (27 page)

This faking was not a simple matter: not
like forging a charter to make people ‘troubled and vexed in their
Possessions’ and grab land, not like faking a bank draft when you need money, or
making trouble during a civil war by inventing the charges earlier kings should have
brought against the enemy. Faking was sometimes a way to make real things somehow more
real, or to confirm an image that an institution wanted for itself, or to make a
political point that was entirely sincere. A town might forge charters so it could run
its own affairs, as Barnstaple did in the West Country of England; and Barnstaple did
quite well.

What mattered was the physical sign: the
writing.

When the ordeal was banned, or at least
made un-Godly and unofficial, the Church still had a persistent problem with secret
crimes. There were priests who weren’t chaste or even celibate; there was the
buying and selling of jobs and power in the Church. Solid evidence was hard to find, so
the ordeal had been a most convenient way to resolve these cases.

Now there had to be a new procedure:
prosecution, or
processus per inquisitionem.
This involved basic changes of
mind. Pope Innocent III
was sure crime
should never go unpunished, not least because the wicked would only get worse;
prosecution was for the public good, and it could no longer be a private action. In the
old way, the accuser brought charges, paid the costs of bringing them, swore to the
truth of them and paid damages if he couldn’t prove his claim. Now an accuser, as
in modern courts, was simply a witness. If the accused was found guilty what he paid was
a penalty, not compensation.

The process begins to seem almost familiar.
The accused had to swear to tell the truth, not just to swear his innocence. The test of
truth was no longer just how many respectable persons would swear to it, but how well it
stood up to questioning. There was to be no more easy resolution, no more asking God;
instead, judges had to reason their way to a verdict, testing the facts. Suppose a
priest was accused of some unpriestly relationship with a woman: a judge did not have to
wait for two bedside witnesses; he could consider evidence that priest and woman seemed
to be living together as man and wife.
⁶⁷

The campaign for a common law had always
been a campaign against the power of local customs; Pope Gregory VII had to point out,
rather tartly, that ‘Christ did not say “I am custom”, he said
“I am truth.”’ Customs could be pagan, after all, or murderous or even
worse. Lawyers’ law was a way to control the customary past and stop it coming
back. It was also a practical matter as rulers put in place a bureaucracy of written
records and general rules, following the example of the Pope himself.

This involved a fair amount of bluff. In
Arras, the citizens liked to wreck and burn the house of any obstreperous criminal,
which was an old Germanic custom. Now the custom was called
lex
in the town
charters – law, in other words. Even when counts of Flanders were writing whole new
codes of criminal law, they let such customs stand – ‘because the law of the town
happens to provide this’. They changed the words with the years, and let reality
change with them. First, the city charter simply wrote down the ‘
lex et
consuetudo
’, the law and customs, of the citizens of Arras; for Ghent, a
bit later, the charter lays down ‘the customary law which Count Philip ordered the
citizens of Ghent to observe’ so everyone knows who is giving the
orders; and, later still, the charters simply list those
orders ‘which the Count ordained to be observed throughout the county’.

The citizens in the towns often thought they
had the right to trim and invent their local rules, and they knew it was sensible to
have that right written into their charters. In 1127 the men of Ghent laid siege to the
castle at Bruges where Charles the Good, Count of Flanders, had been cut up and killed
by upper-class revolutionaries. The burghers brought ‘bold plunderers, murderers,
thieves and anyone ready to take advantage of the evils of war’; they had a plan
to steal the count’s body from the rough tomb where it lay in the castle gallery,
to have the monks hand it out through the castle windows and ‘carry it off, done
up in bags and sacks’, so it could lie where it belonged, in the monastery at
Ghent. Such ruthless scheming and such numbers make it unsurprising that ten days
afterwards the newly elected count found it wise ‘in order to make our citizens
well disposed towards himself’ to grant them ‘the right freely to correct
their customary laws from day to day and to change them for the better as circumstances
of time and place demanded’.
⁶⁸

These concessions had a way of wearing thin
with time. The counts could make some minor reform in the public law and then order it
to be respected in the private law of deals and business, which was where custom used to
rule. Philip of Alsace did just that for Ghent when he ordered that twice the usual
double fines be paid by anyone who stood surety for a condemned person but failed to pay
up and had then to be taken to court to get the money. Criminal matters were the
count’s business, but he added a sentence to the new rule: it was to apply to
‘all transactions’, to all business as well as all criminal matters. He was
making private law.
⁶⁹

Custom was such a strong and desirable idea
that legislation in one century could be assumed to be a matter of custom three
centuries later. In Ypres a town ordinance in 1293 laid down that when two families made
peace after a feud they had to include each other’s bastard sons. The rule was
rewritten into a list of customs in 1535, virtually unchanged; an old law had become a
habit. A great many customs were written down and published and had their own official
standing alongside the law from Rome. In fact, for most people in
Flanders, the high reaches of Roman law never touched their
lives. It was the fifteenth century before a majority of the judges in Flanders were
professional lawyers with their university degrees and their libraries of lawbooks.

Jan van den Berghe wrote his own definitive
book on the legal system of Flanders in the early fifteenth century, and knew its
workings from inside, but he reckoned the way to learn lawyering was like learning any
other craft: ‘old people are obliged by law to teach the young’. He thought
‘the more one has seen, the better an expert one is’. He did not think books
and texts were everything. When he was faced with a tricky case involving marriage,
money and death he said he’d ask someone who knew the books of law, but only
because ‘whenever custom is not opposed to the written laws, one ought to give
judgement according to the latter’. The rule of law was still conditional.
⁷⁰

When merchants needed to sort out a
business quarrel, or clerics wanted to prove title to land and income, they wanted
results and as soon as possible. They got into the habit of sidestepping the slow,
expensive courts.
⁷¹

Just as Roman law was being rediscovered in
the twelfth century, with all its cumbersome machinery, so was arbitration – the ancient
system meant to get disputes out of the courts and briskly settled. You handed the
evidence to the arbitrators, gave them the widest possible powers so there would be no
delays in getting a judgment and expected a compromise more than a verdict.

Law could now be international, not just
national, not just local and customary. When the parties to the dispute were both
foreigners, then the decision could be made in line with the law where they came from.
Law travelled, as money once travelled, along with trade. In time, the big ports like
Bruges had consular courts which sorted out their own nationals – issues like drunks,
gamblers, damaged ships, lost cargoes, labour disputes or brawls between sailors,
provided nobody was killed. Even local courts speeded up when merchants were involved,
because disputes often broke out at fairs, which would be gone in a week with everyone
out at sea or back on
the road; in Bruges
from 1190 the courts had to rule within three days, and they had to meet at least twice
a week.

But if the merchants were settled in a city,
then arbitration was the best solution and debts were often the issue. Nobody wanted to
call in debts because that would wreck a man’s creditworthiness and make endless
trouble for his other creditors, and the dates for repaying a loan were never very exact
in any case. Creditors felt obliged to be patient. You started with friendly letters.
Hildebrandt Veckinchusen lost money in the cloth business and in shipping salt, could
not get the Emperor Sigismund to pay back what he owed, and couldn’t raise money
anywhere he tried, not in Antwerp, not in Cologne, not in Lübeck. He owed money to Weits
and Kupere, whose first reaction was studied and polite: ‘Hildebrandt, dear
friend, do realise that I am surprised you did not give us your money, because we can
make good use of it and we need it.’ Veckinchusen then met all his creditors round
a table at an Antwerp hostel, talked them into waiting and reorganizing his debts, but
the money never came. His Antwerp agent was mobbed by angry traders, and told
Veckinchusen to come back to town, which he did, but he still did not have the money.
Only after more months of waiting did a banker from Genoa lose patience and lock him in
the debtors’ prison of Bruges.
⁷²

In these cases, paper mattered less, talk
more. Truth, as one twelfth-century pope decreed, should be pursued
‘
simpliciter et pure
’, which means ‘pure and
simple’, without the subtle turns of Roman law which, he seemed to think, might
actually get in the way. Arbitrators noticeably liked to leave lawyers out of their
proceedings, the ‘time-wasters’ denounced in one judgment of 1259. Justice
was a private matter again, since arbitration could work only if both sides agreed to
abide by the outcome; there was no prosecutor, no idea of public good. In fact, custom
was back, speaking Latin. The proof of how much law had become a set of rites and
procedures and experts was the number of cases deliberately settled without it:
‘
sine strepitu advocatorum
’, without the rumbling and rustling
of lawyers.

Once it had been communities who knew how
people should behave, what was appropriate, what was right; they knew their own rules.
When people could not move away from
each other, they were obliged to be tolerant. Now it was the law and the professional
class of lawyers who had more and more to decide what behaviour meant, whether it was
odd or mad or wrong.

The clerk Richard le Pessoner was sick in
1285. One night he woke up in the same room as his master, Brother Walter: he was
‘frantic and mad … [then] by the instigation of the devil, [he] smote
Walter on the head as he slept’, first with a form, then with a trestle, with all
the sparse furniture he could lift, ‘so that the brains came out’. He went
to tell his brethren what he had done, confessed: ‘I have killed my dear
Master’, and he laughed and laughed.

The laughter was the shocking part, the
legal proof of madness. Richard was still obviously mad in prison a month later, which
was not a disadvantage in some ways; already in the thirteenth century the law said
‘madmen committing crime in their madness ought not by law to undergo the extreme
penalty nor to forfeit their goods or chattels’, and most people who seemed
mentally ill were pardoned even if they had killed.

Bizarre behaviour was only part of the
diagnosis; for the law memory also mattered. The tests for memory were much like the
tests for dementia nowadays: asking the days of the week, which town someone lives in,
the value of a handful of coins.
⁷³
Mind and memory were what you
needed, in good working order, to make your last will and testament; they were the
law’s notion of what kept a human being entire. A landowner born sick would lose
his income to the crown, but if he fell ill later in life, his income was put aside for
him in case he recovered. The wretched Hugh of St Martin, vicar of All Saints Beyond the
Bridge in the Lincolnshire market town of Stamford, went mad in the winter of 1298 and
was left so poor he was reduced to pawning even his own clothes. He was maltreated and
robbed, which we know because his bishop excommunicated all those who had ‘lain
violent hands’ on Hugh, and later all those who stole from him while he was out of
his mind; but he was also sent away for a while to recover, and seven months later he
was back at work. He had promised to behave discreetly; other priests had promised to
tell the bishop if Hugh went wrong again.
⁷⁴
There was a
generous expectation that a sick man could get well again,
and the courts reckoned they could tell if that was happening or not.

Once the ordeal had settled the question of
whether someone was lying or telling the truth, and therefore innocent or guilty; but
now the law was no longer just about who did what. It was about why and in what state of
mind and with what intent and how a person acted before and after and during and what he
was likely to do next. The law was opening little windows into souls.