The Edge of the World: How the North Sea Made Us Who We Are

by Michael Pye

  Innkeepers all across Europe now had responsibilities ‘so that no loss in any way shall befall [their] lodgers through the default of the innkeepers or their servants’. If anyone stole your goods during the night you could bring a writ of ‘trespass’. In a case from 1369, a doctor who took a great part of a man’s salary to cure a wounded finger was sued when the finger was lost; and in 1387 a horse dealer hid some infirmity of the horse he was selling, and ended up in court. Anything that went wrong, and cost money, might now end up in the paperchase of the law.

  It was never a simple matter. A doctor made a promise in London to cure a man, but he treated him in Middlesex; so, since medieval law wanted juries who knew things first hand, to begin with there had to be hearings on where the hearings could happen (the court settled on London). The same wrong, like not paying a debt, could be either a breach of contract, in which case the debtor was safe from jail, or a tort, a legal damage, in which case he could be jailed until he paid. (Damages for a tort were meant to punish, but for a breach of contract they were simply compensation.) Never mind that the plaintiff just wanted his money; the lawyers had first to decide what kind of wrong had been done. The risks were not always to do with common sense, since judges could disagree as late as 1482 on whether a man could be liable for a debt without any fault of his own; Chief Justice Brian wrote alarmingly that ‘if a man is bound to me on condition that the Pope will be here at Westminster tomorrow, in this case if the Pope does not come, although there is no fault in the defendant, still he has forfeited his bond’.59

  The ordinary stuff of economic life required tangles of paper that did not always do their job. Ulman Stromer of Nuremberg discovered in the fourteenth century that hiring someone to work in a paper mill required written contracts to prevent your skilled workers from running off with their skills to another mill. Stromer needed a millwright on a lifetime contract, a paper expert on a ten-year contract and an Italian family with arcane skills who were sworn not to teach anybody else how to make paper or help any Italian who wanted to make paper in Germany; the Italians ‘swore a holy oath’ and ‘the conditions of this contract are registered sub publica manu’ (that is, on public record). They also wanted more Italians to come from Lombardy to help them work the mill, and they had a plan to make Stromer rent them the mill so they could operate it for themselves, and despite all the oaths and papers the mill never did run properly. Stromer found it necessary to arrest the lot of them and lock them in a small tower room. He had to wait a while but after four days in the tower his men agreed to sign a whole new contract, in which they agreed to obey the first contract and not go to law anywhere except Nuremberg. That didn’t work, either. Within four years, an exasperated Stromer decided he had had enough, and leased the mill to someone else who would make him paper ‘in order that I have nothing to do with that’.60

  When cash was short, the law sometimes did provide ingenious answers. At the end of the fourteenth century English grocers had trouble finding enough coin to stay in the cloth business, especially since the Italians had floods of silver out of Serbia and Bosnia. They needed credit on a generous scale. To get it the grocer John Hall in 1396 made a deed of gift of all his goods and chattels to someone else, a deed which was used most often to avoid some threat of confiscation by the law or creditors; but Hall made his in return for a bond worth £500. He still had the goods in his house, he was even allowed to sue anyone who damaged them or tried to take them away – anyone except the holder of the bond, who could seize them if the money was not paid back. He also had cash to buy and sell. This new use of an old kind of paper was seen more and more from the 1440s, a way to compensate for the desperate shortage of bullion: it made credit work.61

  The scale of trade across the seas created even more complications, and the law was not good at keeping up. Consider the ships carrying freight in Danish waters from the eleventh century onwards; their wrecks lie out in the open sea, which suggests they were working the long sea routes, and many are real sailing ships with no room for rowers on board, built large to carry as much cargo as possible, fifty to sixty tons. That means professional merchant seafarers, who almost always needed to do deals before they set sail: the ship and its cargo might belong to a list of shareholders, and before sailing there might be a crude kind of insurance to organize, in which the shipmaster put up some money which the owners of the cargo would keep if he failed to get their goods safely to their destination. Whatever rules and customs covered all this, however it was organized, the law itself was not codified until the thirteenth century, which is hundreds of years after the ships were out sailing, and sinking.62

  Partnerships in a ship once lasted for just one voyage and they could be settled on the docks; but by the middle of the thirteenth century they were the basis for big trading companies in Italy whose shares could be bought and sold, with responsibility for loss and profit, sale and delivery shared among people who might simply be trading the paper on the shores of the North Sea and might not know each other. This idea of shareholding was not entirely new; there was a kind of limited company operating windmills on the Garonne in France from the twelfth century, with shares that could be dealt in the marketplace at prices that varied according to the strength of the river currents, the state of the harvest, the likelihood of floods.63 But that was local knowledge; now an investor needed to know about storms, pirates, the price of goods in two or three markets and the value of money. The small-town medieval markets ran on credit with not much coin in circulation, depending instead on the stallholders knowing by name, address and credit each customer for eggs or bread or cabbage; now credit was needed on both sides of seas, in different languages and in different moneys, for goods whose price and value were constantly changing.64

  The world felt the need of law to manage all this: to file the proof when properties did change hands, to check the contracts, to deal with the aftershocks of contracts that went wrong, to handle mortgages and credit and risk; later, much later, they would also be needed to organize proper insurance for sea voyages. Lawyers made things run, including royal courts and growing towns that were now more important than any rural, feudal territory. The age of the single Frisian boat owner, plying up and down the coast and the Rhine with goods, was a distant memory, and there were distinct classes of stay-at-home merchants and financiers, the shipowners and shipmasters who moved the goods, and the agents in distant ports who did the buying and selling. They needed a crude kind of accountancy, reliable information and lawyers to make them a little safer.

  Writing it all down was vital. Only then could the serious talking begin.

  The very best proof of how much writing mattered was the forgeries. Forgery had been an ecclesiastical habit for centuries. St Anskar made rather a mess of his mission in the 840s to turn Scandinavians into Christians, and he needed political backing to carry on with his work; so he faked documents to support his useful fiction that he had Charlemagne’s permission for a diocese in the North, Hamburg and Bremen combined. He also used false documents to prove he was an archbishop, which he did not need to do; he was indeed an archbishop at some point in his career. He still needed written proof, though, and he wrote it. His disciple Rimbert also wanted to be in charge of the diocese of Hamburg–Bremen, so he invented the story and the proofs all over again: as though forging documents was like writing a kind of revisionist, hopeful history.65

  There was in the ninth century an enthusiasm for the monks at certain monasteries – Corbie in France, for instance – to help out history by writing down the decrees and orders they felt popes and councils had always, obviously, meant to issue. Two centuries later, faking had become a monastic speciality; the fine, distinguished houses at Westminster, Canterbury, Durham and later Glastonbury offered less grand houses a forgery service when they needed charters to prove their title to land. They were told again and again that fakery was a menace to authority, in the Church and in the kingdom; a false papal seal, as John of Salisbury wrote,
‘is a peril to the universal church since by the marks of a single impress the mouths of all the pontiffs may be opened or closed’.

  The monks persisted. They were the archivists, the keepers of records, and they were quite prepared to improve on history to keep the record straight. The monks of Crowland in Lincolnshire invented thriller detail for the story of how fire took down their monastery in 1091; they had a hero abbot dodging streams of boiling lead and molten brass to wake up sleeping monks and save them from the flames. The hero also, naturally, had already saved the vital charters so that junior monks could have a chance to learn Saxon script; those charters survived the fire, the fake history said, which was convenient since they proved fake title to valuable lands.

  The more respect for the written word, the more fakes. Of all the official documents of William the Conqueror, roughly a third were written down in the twelfth century long after his death, and more than a third of those had absolutely no basis in anything earlier. Sometimes the riskiest faking was for the grandest causes. Austria tried to bargain its independence from Emperor Charles IV in 1360 by producing proofs signed by Julius Caesar and Nero; but, unluckily for them, the Emperor knew the humanist Petrarch, and Petrarch had several letters of Julius Caesar in his library, so he could compare them. The fake Caesar used the plural in the wrong places, ‘we Julius Caesar’ in the royal ‘we’, which was not a Roman style. ‘This ox,’ Petrarch wrote, ‘did not know this.’

  Forgery was some men’s habit. Over forty years in the fifteenth century the soldier John Hardyng produced at least twenty documents meant to prove that Scotland was subject to England, of which seventeen, at least, are forgeries. He has Scotland acknowledging the English king as liege lord in the eleventh century, he has treason charges dropped against Scots who claimed it was no treason to serve the King of England, and various Scottish kings swearing various oaths, all with carefully faked seals: documents whose falsity, nineteenth-century scholars said, ‘was most apparent’. There is no evidence any English king used the documents, but Hardyng still thought them worth the work; he had been in the service of various northern English lords who had lost their lands in Scotland and remained ever hopeful. He was acting like an enthusiast for a cause who self-publishes a book of history, except that he had to fake the handwriting, the wax, the parchment.

  There was also the matter of Cambridge University’s forgeries: its claim on an ancient past. The dons in 1381 had been forced by a local mob to give up ‘all kinds of privileges and franchises granted to them by all kings of England since the beginning of the world’ and agree to be ruled by the local citizenry, who, for the sake of certainty, took a knife to the seals on the old charters and then burned them in the marketplace. In 1429 the university wanted to be free of interference from archbishops, bishops or archdeacons, or any of their many officials, but they had no charters left; so they took refuge in fantasy. The university actually began in the thirteenth century, a refuge from Oxford and from Paris when both schools were having brief but heartfelt crises; but Cambridge offered papal letters from the seventh century. They did not, unfortunately, have the originals, but they had very old copies, they said; and apart from anything else the letters showed that Pope Honorius himself had studied at Cambridge, about six hundred years before anybody else.

  The deception worked. The university now produced a wonderfully mythomaniac history which involved Alcuin, Charlemagne and King Arthur, who was supposed to have guaranteed in 531 ‘the study of learning undisturbed’ on the grounds that the King of Britain had been converted to Christianity ‘by the preaching of the doctors of Cambridge’. The fantasy was meant to align Cambridge with the fantasies of other universities, with a dream of the vivid intellectual life of ancient Britain, with all kinds of comfortable thoughts about the primacy of the university whose start was now put back so far it might seem as remote and wonderful and even mysterious as the start of the world itself. Besides the ambitious self-inflation, the documents also had the very practical effect of getting the bishops out of the university’s affairs.66

  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.