by Ed West
Louis was still devoted to her, but lost Eleanor and the whole of Aquitaine in possibly the worst settlement in history before the arrival of the modern divorce lawyer. Had they produced sons he would have kept her, and to add insult to costly injury she went on to produce five boys by her new, younger husband, four of them surviving to adulthood, as well as three daughters. Henry also had as many as twelve children by his various mistresses, an attraction that must have had less to do with his bloodshot eyes and enormous beer belly, and probably more to do with his massive empire stretching from the borders of Scotland to the northern tip of Spain. Notorious for his sexual appetite, Henry’s court had so many prostitutes attached to it that there was a ‘marshal of the whores’ to deal with them, whose name was, implausibly to fans of British comedy, Baldrick.
Although under the feudal system he was technically a vassal of the King of France in his French territories, Henry was in some ways more powerful, and he and King Louis VII were great rivals, as their sons would later be. When in 1158 Henry traveled to meet his opposite number to arrange the marriage of his infant son and Louis’s daughter by his second wife, he used it as an excuse to show off his country’s growing wealth and status.
Among the entourage that made its way from the coast of Normandy to Paris were 250 men singing English songs, a selection of English mastiffs and greyhounds, and eight carts filled with English ale, pulled by teams of five horses, each ridden by (a nice touch, this) a monkey dressed in English national costume. The French king had deliberately banned villagers on the procession’s route from giving the Englishmen food, so that they’d turn up in the capital looking pathetic and disheveled, but the organizer had thought of this. When they arrived in Paris, even the Parisians were impressed—‘ooh la la,’ they probably said.
The display was recognition of London’s newfound wealth and ostentation. From this point on, the people of the city become recognizable as the wealth-obsessed, fashion-conscious spivs that the rest of the country loves so much. A thriving trade hub, London even had its first restaurant, a twenty-four-hour ‘cook-shop’ by the Thames, as regular patron William FitzStephen called it, which served ‘Seasonal foods, dishes roast, fried and boiled, fish of every size.’ Alehouses were for the first time springing up, recognized by a long projecting pole beside the door, where a bush was hung. (Today hanging baskets are still hung outside pubs in England.)13
By the end of the twelfth century, England had become more prosperous than ever. There were now 150 fairs and 350 markets across the country, church spires were shooting up, wool and tin were big exports, and London was now home to thirty thousand people and second city Norwich between five and ten thousand. The twelfth and thirteenth centuries saw huge economic growth in western Europe,14 and in England the population tripled in two hundred years, reaching six million in 1300, a figure it wouldn’t reach again until the eighteenth century after the devastation of the Black Death.15 London had also become the center of government by the time of Henry II, with the Treasury moving from Winchester to Westminster in the twelfth century, although there weren’t really capital cities as such, as the royal court traveled around with the king and his entourage.
FitzStephen also described how Londoners liked nothing better than indulging in cockfights, football, dancing, ‘leaping,’ casting stones, and practicing ‘feates of warre with disarmed launces and shields.’ Wrestling was also a popular sport with rich and poor, although women weren’t allowed to watch; every year there was a big wrestling match on St. Bartholomew’s Day (August 24) in Clerkenwell, and back in those days it was real.
Still, not everyone was a fan; Richard of Devizes, who had come from Winchester, wrote of London in the 1190s: ‘Whatever evil or malicious thing can be found anywhere in the world can also be found in that city. There are masses of pimps. You will meet more braggarts there than in the whole of France. The number of parasites is infinite. Actors, jesters, smooth-skinned lads, Moors, flatterers, pretty boys, effeminates, pederasts, singing and dancing girls, quacks, belly-dancers, sorcerers, extortioners, night-wanderers, magicians, mimes, beggars, buffoons. If you do not wish to dwell with evil-doers, do not live in London.’ What he’d have made of Soho on a Saturday night can only be guessed at.
And the city was certainly dangerous: savage dogs hung around St. Paul’s cathedral terrorizing passersby until mid-thirteenth century,16 while its murder rate would have been higher than any US urban area today, and as with all towns at the time everyone had to be home after the curfew bell was rang at 8 p.m.*
Aside from pimps, quacks, and smooth-skinned lads, a growing number of men made good money as merchants. Among them was the Norman, Gilbert of Thierceville, and as Gilbert’s son had become a crony of the king, so it was natural that Henry should turn to him to organize the English display in Paris. He did a brilliant job. His name was Thomas Becket, and he and Henry were to seriously fall out.
____________
* A German song from the period went:
Were the world all mine
From the sea to the Rhine
I’d give it all
If so be the Queen of England
Lay in my arms.
* This was called the Salic Law, and would be the subject of great contention in years to come when the English king Edward III claimed the French crown through his mother.
† Theobald would later win a claim to fame by orchestrating the first blood libel in Europe against Jews. He eventually joined the Third Crusade, dying at Acre and presumably going straight to heaven.
* Wallingford in Oxfordshire was alone in being allowed a later curfew, 9 p.m., as reward for the city supporting William the Conqueror in 1066.
CHAPTER THREE
Twelve Angry Men
Magna Carta was just one part of a legal revolution that took place in the twelfth and thirteenth centuries, one that was mainly carried out not by the sociopathic monarchs of the age but very clever and diligent clerics, few of whom are remembered.
When he came to the throne, Henry II fired all the country’s treasurers, and then fined them for getting fired. He rehired Henry I’s moneyman, Nigel, Bishop of Ely, and put him in charge of national finances: Nigel was given the new job title of Lord High Treasurer of England, a position that later sort of developed into First Lord of the Treasury (from 1714), which evolved into the role of prime minister, a position always held by churchmen during the medieval era.
Like the grandfather after whom he was named, Henry II was very concerned with good government, a necessary worry for someone in control of such a large empire that needed money. Perhaps his most groundbreaking ruling was the 1166 Assize of Clarendon, in which the king declared that the Crown would investigate all crimes, whether or not local lords were looking into them. Previously, the neighborhood bigwig would investigate any wrongdoing in the area, which gave him effective impunity (after all, he may well have committed it). Under the Assize, people could also claim back property they had inherited (mort d’ancestor), or reclaim homes they had been ejected from (novel disseisin), thereby establishing property law. Devices called tally sticks were used to register payments to the Crown, and records were kept from the twelfth to the nineteenth century by which time the technology was updated (a bonfire was made of the sticks in 1834 which, unfortunately, ended up burning down Parliament).
The Assize of Clarendon, named after the hunting lodge in Wiltshire where the king stayed, was perhaps as influential as Magna Carta in one specific way, bringing about the concept of habeas corpus. Meaning ‘you may have the body,’ this is the legal principle whereby a prisoner can report an unlawful detention before a court, the effect being that no one can be detained without due process. This is very similar to one of the key clauses of Magna Carta, and is often wrongly attributed to the charter.
Henry’s most innovative change was to the way that suspects were tried. Quite reasonably, he thought that the experimental jury system used under Ethelred and his Viking successor Canu
te in the eleventh century was better than the two current systems of justice, either trial by ordeal or the more progressive method of trial by battle.
Trial by ordeal had been around since Saxon times, and involved the accused having to walk over the sharp bit of a plow after it had first been put in a fire to make it red-hot. A variation of the theme had the poor accused holding two hot irons and walking nine paces, then waiting a week to see if the wounds had healed; under this scientific method if they had recovered, the suspect was not guilty, but if the wounds had festered then they were hanged. The genius of the system was that if they had not healed then the accused would probably die in agony anyway of some horrible infection.
Alternatively, you could opt for trial by either drowning or boiling—obviously both had their downsides.
The Assize of Clarendon laid down the rules for the ordeal of cold water, stating that it was to be held in a twenty-by-twelve-foot pit outside a church. Although horrific, around four out of five people could survive the ordeal, according to modern research, assuming they were not grossly obese, something few in the medieval era would have to worry about. As long as you took a deep breath beforehand you had a reasonable chance of staying below water, and being found not guilty.
The Assize stated that if the defendant failed by floating to the top, ‘he must lose one of his feet, and in this maimed condition abjure the realm.’ Finding a job overseas in the twelfth century was hard at the best of times, but when most labor was physical, doing so after having been ‘defooted’ must have been challenging.1 But this was obviously considered overly indulgent and so ten years later, at the Assize of Northampton, it was ruled that the guilty man should also lose his right hand.2
However, the law was updated once again to state that ‘if the accused were men of very bad reputation, even if they succeeded in the ordeal, they must leave the country and be accounted as outlaws.’ So you couldn’t really win.
These trials, however, were great fun for the local community, for whom ‘the ordeal by iron or water was an orchestrated religious drama, signaled by their priest’s blessing of pit or iron.’3 By Henry II’s time it had become something of an event, with spectators watching the event while sipping at specially blessed water and kissing the cross. Those who wanted to attend were expected to fast ‘and abstain from their wives during the night’; the accused were also made to eat nothing for three days except bread, salt, and some herbs before they had to plunge their arms into boiling water.
Trial by ordeal was killed off by those spoilsports, the Catholic Church. In 1215 at the Fourth Lateran Council, the Church banned priests from taking part in such events, and since prayers and blessings were required for the event to go ahead this effectively put it to an end.4 The theological argument was that it was not reasonable to demand divine intervention, as if God was just a genie who could be summoned, because a miracle had to be a free act of God. However, the underlying reason was that the Church didn’t like violence, and phased it out where it could.* The Church did this despite the loss it suffered as a result; priests were paid pretty good fees for ordeals and many churches owned ordeal pits and consecrated irons, so these events made them the center of the community.5
The Normans, meanwhile, had a pretty basic idea of divine justice: if you beat people in battle, God was on your side and therefore you were the goodie. They, therefore, introduced trial by battle, which is fairly self-explanatory. If someone committed a crime against you, you reported it and then fought them in a duel to the death; although such fights were often between fellow criminals who had turned evidence against each other. Dualists fought ‘with clubs and shields, teeth and nails until one or other cried “craven.”’ And ‘if they break their weapons . . . they must fight with their hands, firsts, nails, teeth, feet, and legs.’6
Knights battled with swords and lances, peasants used staves with iron heads, while women and priests could appoint a champion, which must have been hugely welcome news to men returning from a hard day’s labor in the field only to discover they had to do combat with the next-door neighbor’s husband. In one recorded incident from Gloucester in 1221, the ordeal ended with the loser being castrated and his testicles thrown to a group of boys, who gleefully played football with them. This particular legal case, involving two old friends called George and Thomas, had begun four years earlier. Thomas had once slept with George’s wife before they were married, and there was tension in their friendship; the two were drinking one day and on the way home, while heavily drunk, George hit Thomas over the head with a stick. Thomas hit him back with an axe. Then George raised the hue and cry, whereby every man in the local area, the hundred, was expected to form a ‘posse’ to track down a wrongdoer. It was another four years before the authorities got around to ruling that it should be resolved by battle. Thomas lost, but in an act of liberal decadence the judges spared his life and instead ruled that he could be let off with castration and having his eyes gouged out instead. This was done by George’s family ‘which, supervised by court officials, they did with enthusiasm.’
Trial by ordeal was formally abolished in 1219. Trial by battle lasted into the following century, but remained in theory on the statute books, forgotten about until one murder suspect invoked it in 1818. Legal experts had to look it up and realized he was right, and the man got off; afterwards Parliament quickly got rid of it.7
In 1179, Henry II allowed defendants to decide whether they wanted trial by battle or the case decided by a group of twelve local knights, a privilege described then as ‘a royal benefit granted to the people by the clemency of the prince on the advice of the magnates.’ Or as we now call it, the jury system.
Juries had developed from a tradition in Anglo-Saxon England whereby people had to bring a group of men, often twelve, to act as character witnesses. This evolved into the idea that officials had to gather a dozen local men to give their opinion on the suspect’s character and decide what the threadbare evidence suggested (today of course juries are supposed to judge purely on the evidence, and to ignore previous crimes). The related system of grand juries, whereby a group of people were brought to hear whether there was enough evidence to try someone, date from the reign of the hopeless Ethelred the Unready around the turn of the millennium, and lasted until the nineteenth century in England; they are still used in the United States.
The new nonviolent trials by jury became known as assizes, from the Norman French asise, to sit. Elsewhere in Europe trial by ordeal was replaced with the more forward-looking trial by torture (of both accused and witnesses)—only England and Denmark took the jury route.
Strangely, as the law became fairer and more moral, it also became more severe. Men could no longer just pay compensation as in the good old days, but were treated as sinners who should expect to be punished. Before 1066, the punishment for forgery was to have a hand cut off, but it was increased to having a hand cut off with castration by 1200, and the following century it had become a capital offense. There was also a crude idea that punishments should fit the crime: arsonists were burned to death, rapists were castrated, and people convicted of slander or false accusation had their tongue cut out.
But generally speaking justice was corrupt and a wealthy man, accused of a crime, could offer money ‘for having the king’s love,’ or that ‘the king’s anger might be relaxed.’8
Alternatively, you could stay in jail until you opted for a trial, although prisons were pretty rough, and it was later decreed that ‘a defendant who opted for jail should suffer peine forte et dure from heavy stones placed on his chest until he either chose to go to trial or was pressed to death.’ So that rather ruled out that option; instead two-thirds chose to flee and become outlaws.9
Under Henry there was a large increase in the number of judges and legally trained staff; and growing demand for the use of courts once people learned they could sue each other. The new legal staff wrote documents called ‘Final Concords,’ which set out in a semiofficial way the terms
of court settlements, in Latin, although even then men complained it was a sort of legalese Latin that people who understood the language couldn’t get their heads around. In this way, in English (and American) law the interpretation by one judge sets a precedent for what others decide. Court reports, or rolls, were kept for the first time, although a relatively small number survive. It was a mixture of different traditions, and in the words of historian Robert Tombs: ‘The English Common Law was the first national system of law in Europe. It was a hybrid of Anglo-Saxon and Norman customs and Roman theories, using French terms and concepts—debt, contract, heir, trespass, court, judge, jury—and (until 1731) keeping records in Latin.’10
In order to bring criminals to justice there grew up regular judicial tours of the country by the king’s judges, or sometimes just the king’s friends, who went around dispensing said justice.11 The principle of a traveling circuit was that, unlike local judges, they would not know anyone and therefore be impartial. Meanwhile, royal officials meeting in Westminster Hall became known as the Bench, later called the Court of Common Pleas. Previously, much justice was done privately, either by local lords or even by individuals—with mixed results. In Bedfordshire, for example, in the 1170s a man got his next-door neighbor convicted of stealing from his house, and did the blinding and castrating himself. Later, it turned out the neighbor was innocent. In 1194, the office of coroner was established to record serious offenses in each county, and by the time of Edward I in 1272, blood money could no longer be used, and the distinction between criminal and civil law also emerged fully.
Henry II also ordered that jails be built in every county. Perhaps the most famous was the Clink prison, set up in the twelfth century under the authority of the bishop of Winchester in Southwark, and which became slang for jails in general. The diocese of Winchester owned huge amounts of land in the area, which faced London on the opposite bank of the Thames and was outside of the city’s jurisdiction; this included a number of brothels, a strange situation that was still around in Shakespeare’s time and is mentioned in one play. Prison was not a great place back then, and deaths were very common; in one year, half of all cases of deaths recorded in the Coroners Rolls for the City of London involved men who expired in jail, and considering the number of free people in London at the time who died from misadventurer, murder, and various other unnatural causes this must have been a lot.12