by Jack Lindsay
As we go on, we find fines grew more and more customary, so that the greatest possible profits could be got out of justice. Further, when a man for some reason, often quite innocently, found himself embroiled with the authorities, he was adjudged in misericordiam; he was at the king’s mercy and was amerced. By the twelfth century we get the impression from the eyre rolls that nobody, however law-abiding, could hope to escape amercements at some stage. (Eyres were the itineraries of the king’s justices, and the rolls were the records of the proceedings before the justices, made by the clerks as a simple record and as a memorandum of fines imposed.) We understand why the coming of the justices under Henry II stirred such a general dread. In 1180 Leicester paid the large sum of eighty marks ‘that they may be quit of murder fines and common pleas’ on the visit of the judges; and later, in 1202, Lincoln, where there were eleven charges of murder, thirteen of robbery, and four of breaking peace, paid a hundred marks that they might not be interfered with in the pleadings, plus £100 compounded for licenses to settle matters out of court and for their misdemeanours. The idea of amercement may well have owed something to the Old English system of bot and wite, by which crimes were atoned for by money payments to both wronged person and the crown, according to a finely graded tariff. But if there was a link, the Norman application threw out any notion of compensation, and in an arbitrary way used the system wholly for the benefit of the king. The only cases in which fines were now linked with compensation for damages were cases of disseisin (wrongful dispossession of real property) and infringement of rights, for example by obstructing watercourses or tampering with landmarks. (Landed property was the sacred thing.) Amercements were not even imposed as penalties for crimes; they were tariffs for the profit of the state. Only minor misdemeanours such as selling wine or cloth contrary to regulation were punished by money fines. Over £25 was got in by the justices in 1200 from a group of Lincolnshire men ‘for putting a woman unjustly on the tumbrel’, and more than twice that amount next year for catching a fat fish, a whale or porpoise (royal prerogatives). Common law (the law of the royal courts common to the whole realm, not regional or sectional like the law of custom or the law of the honorial courts) was growing faster than the machinery of justice and policing. The burden of detecting crime rested almost wholly on the unpaid and unaided labours of the community of peasants and townsmen.
The changes made by Henry II in the legal system in the end led to our commonlaw procedure; but in these early stages the law was a crafty business, which ‘certainly favoured the criminal’ (A. L. Poole). ‘Perhaps the rough justice meted out in Henry I’s day was better suited to the times...The new procedure was little more than an expensive game of forfeits when the minimum stake was half a mark, 6s 8d. It was also a compulsory game at which heads I lose, tails you win.’ You were sure to leave court poorer, whether you had attended as plaintiff, pledge, or juryman.[445] Hence the twentieth clause of Magna Carta, which tried to protect freemen, merchants, and even villeins from amercements.
Trial by battle was brought into the legal procedure, with mutilation in place of the death penalty. An Englishman, accused of theft or murder, could still clear himself by compurgation, the corrobora-tive testimony of a sufficient number of witnesses, or by the more familiar forms of ordeal by water or fire. If there was a duel, it might have to be fought by witnesses as well. (Ordeals were condemned by the pope in 1205; but trial by battle and compurgation went on till the end of the Middle Ages, and neither was abolished till the early nineteenth century.) One of the parties might get off by claiming that he was maimed or over sixty. Here is a record of 1202:
Ralph the blacksmith appealed Ralph son of Jordan that he infringed the peace of the lord king and basely assaulted Agnes his wife and robbed her of 5s and 3 rings and 2 silver brooches, and he gave her a wound in the head, and besides that he broke the window of her house, and this he offers to prove against him in the consideration of the court as of his sight and hearing. And Ralph defends the whole. And it is considered that there be a duel between them, because the jurors bear witness that he raised the hue and cry and that he exhibited a little wound. They came armed on Tuesday after the octave of the feast of the apostles Peter and Paul at Lincoln. Afterwards they came and put themselves in mercy.[446]
That was a common ending to such ordeals. There was no fight. But a late account says that if the disputants did engage, they must go on battling ‘with their hands, fists, nails, teeth, feet, and legs’, and Bracton considered the front teeth a valuable asset in the scrimmage.
Generally in ordeals (according to Glanville) the freeman had to carry the hot iron, the unfree went through the ordeal by water. The nobles seem seldom to have been required to face either ordeal. In the Pipe Roll of 1168 we read: ‘for the cost of one knight hanged and for the ordeal of one man who failed and was hanged, 8s’. Water was in fact the common ordeal. Both the Assizes of Clarendon and Northampton prescribe it for all cases; and from the Pipe Rolls it appears that only Hampshire disagreed. There in 1176 iudicio ignis was substituted for iudicio aquae in the lists of all who failed to pass the tests. Usually only women offenders had to carry the iron.
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The church had shown itself more amenable to the Conqueror than the lay lords; only the bishop of Durham had joined in the revolts. The bishops might well have expected to be accepted as upholders of the invasion which the papacy had blessed; and even the abbots though less conforming, could not be accused of stirring up trouble. But they failed to reckon with the fact that William, intent on creating a secular power structure based on the fief, could hardly leave the church alone and treat it as something separate. He looked on the church entirely as an aspect of the state; he had to consider the bishops as instruments of government and bring them into the same system as the secular tenants-in-chief. Besides, the Normans could not but look on the English church in general as rather slumbrous and old-fashioned. While admiring its treasures, they despised the vernacular of most of its ministers; and they found many churches at important sites unimpressive. The Norman church had for some years been committed to the cause of reform through houses like Bec, and there was much to reform in England, where the marriage of the clergy was perhaps even more tolerated and accepted than on the continent. Above all, the Norman churchmen and their friends were hungry for English bishoprics, abbeys, treasures and lands.
Not that William did much before 1070. He did not want to complicate the situation and his spoliations were limited to what he urgently needed to reward the churches which had supported him, and to meet his war costs. He even flattered Stigand, who thought he had got himself accepted. A warrior-priest like Ealdred of York was at home with the Normans; but in any event he soon died. By 1070 William no longer felt it necessary to court the English churchmen. Shrewdly he once more drew in the papacy to strengthen his stand, while giving Rome the illusion that it was entering the situation as a prelude to claiming England as a papal fief. Ermenfrid, bishop of Sitten, was sent with two cardinal priests as papal legate; he had some knowledge of Norman affairs, having operated against Mauger in 1054-5; and he may have visited England in 1062 with Ealdred to carry out some agreed reforms. William could rely on him.
The legates arrived in 1070 and called the bishops, and the abbots in their dioceses, to a council at Westminster on 7 April. Their aim seems to have been merely to depose Stigand and the bishops he had consecrated. But that didn’t suit William. The first of his own new men had been consecrated by Stigand, and he wanted to get rid of Englishmen whose orders no one could challenge. Stigand was accused of intrusion, of getting his pallium from a false pope, and of pluralism; four other bishops, mostly with no definite charges against them, were deposed. Only seven of Edward’s bishops were spared, and of these four or five were foreign-born. Lanfranc became archbishop of Canterbury; he nominated a monk from Bec for Rochester, and then when this bishop died, he put in another monk from Bec. William in all made sixteen appointments, to twelve sees; he p
romoted no Englishman. Already in 1066 he had made one of his chaplains a bishop in Normandy. Such appointments were an English tradition, which he carried on. His men were mainly Norman, though two were Lotharingian and one from Maine (probably of Norman origin). At least a third of his sees were held by monks, and an even larger proportion of monks appeared under his sons. He chose his bishops and invested them with ring and staff himself, making them his vassals. (We do not know the form used by Edward.) Reformers declared that the investiture was with temporalities only; and later Henry I had to give up using ring and staff, though he kept control of appointments. But William did not sell his sees, and in this respect was in line with the reform movement. In general he made no attempts to meddle with English customs though he formulated them more precisely. He wanted an obedient church and had no interest in putting his magnates into sees. Efficiency was his test, together with readiness to cooperate; other qualities were incidental. Walkelin of Winchester was pious, Herfast of Elmham loose-living, Thomas of York (favoured by Odo) a musician and a scholar.
Before he brought Lanfranc into the see of Canterbury, he had taken a decisive step aimed at integrating the church into his feudal order. He drew the whole network of bishoprics and abbeys into the tenurial system, imposing on all bishops and most abbots the obliga-tions of knight service and feudal incidents. The church thus had secular as well as ecclesiastical status in a far more systematic way than before 1066, and was joined with the crown in an economic and legal dependence. At the same time, precisely because the church was now being definitely organized and was losing the loose uncoordinated structure it had before 1066, the possibilities for it to assert its independence were increased.
William had forged his power in a fairly small duchy, where he might have had trouble with individual churchmen but where the church itself could not have hoped to resist him; Lanfranc, both lawyer and theologian, had grown up in an Italy that did not yet know the reform movement, and, despite his loyalty to the papacy, his whole outlook was based on the idea of harmony between pope and theocratic ruler. Like the compilers of the pre-Gregorian canonical collections, he looked on the regional metropolitan as the indisputable centre of authority for the English church.[447] He and the king, aided by papal legates, set about creating a new order and regularity in the hierarchy. Unconcerned with English tradition, they had four sees moved, with the sanction of canon law, from backward villages to townships with a promise of growth. The bishops of Dorchester, Ramsbury, Elmham and Selsey became the bishops of Lincoln, Salisbury, Thetford (later Norwich) and Chichester. In two other cases the movement of the see did not extinguish the ancient cathedral; Bath was added to Wells in the title, and Coventry to Lichfield. There were then fifteen dioceses, and this number remained until 1540, except that Henry I added the two small sees of Ely and Carlisle, the latter in a region that William I had not effectively controlled.
There was also a scheme for developing the whole of the British Isles into a single ecclesiastical area, which would reflect the secular unification by the crown. A great difficulty here was the position of metropolitan York, and Lanfranc ran into trouble when he tried to assert the primacy of Canterbury. Thomas of York in the end was forced to accept the royal position; but his see’s ancient claims to equality were so strong that Lanfranc did not profit much from his victory. As part of the wider scheme, however, York was encouraged to claim rights over southern Scotland. Wales was permanently drawn into the English system; and monks educated in England were consecrated for some Irish sees. One of them, archbishop of Dublin, even took an oath of obedience to Lanfranc. But the scheme envisaged political controls which were not established in Scotland and Ireland, and it was soon to run counter to the new canon law which wanted stronger papal assertions everywhere and did not like metropolitans with huge provinces.[448]
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In 1070 William allowed the reformers to start the struggle against laxities in the church. Reforming activity in Normandy also led to the councils of 1072, 1074 and 1080: two of them at Rouen, one at Lillebonne. In England the fifteen canons attributed to the 1070 council condemned simony and the holding of two bishoprics at the same time, and bade clerics live chastely or give up their offices. In 1076 Lanfranc interpreted this injunction to mean that married village priests and deacons could keep their wives, but none in the future was to have wife or concubine. He called councils yearly, though with some intervals, and attempted a number of reforms. Not much attention was paid to lay morals except to prohibit marriage within seven degrees and to insist that the ceremony should have a priest’s blessing. Procedures strengthening the position of bishops were drawn up, and laymen were obliged to accept the jurisdiction of the bishop’s court, which, with the synods, was to enforce canon law. Penalties were excommunication and constraint by the sheriff.
William did not foresee any challenge to the secular power, and no sign of such a challenge was to come for many years; but the basis had been laid for an ecclesiastical independence that he did not dream of. He aimed at increasing the theocratic aspect of the kingship, not at undermining it. The separation of church courts and secular courts had worked well in Normandy, where the system was reaffirmed at Lillebonne in 1080; and William may well have felt that by clarifying what was ecclesiastical and what was secular in legal matters, he was making royal control easier — especially in England with its network of old folk law. Lanfranc, and maybe others, had introduced a book of canon law, which was used to deal with issues as they came up; but it was old-fashioned and did not raise any uncomfortable questions. William in his own way felt himself a faithful defender of canon law. ‘I have ordained that the episcopal laws shall be amended, because before my time these were not properly administered in England according to the precepts of the holy canons.’ But he certainly looked on the new church courts as being as much a part of his governing system as the shire courts.
The lesser offices in a diocese were now something like enfeoffments, territorial archdeaconries which were subdivided into rural deaneries. With their enhanced powers the bishops needed archdeacons and officials to govern and carry out their jurisdictions. In a writ of 1072-6 they were confirmed in their sole control of ordeals, and about the same time came their separate courts, in which lay officials were ordered to give them as much help as before. Moreover, they got the profits of justice from cases that came up before them. William would have considered a church court as much a part of his governing structure as an honorial court granted to a baron; the bishop was his vassal and he himself through unction was a representative of God. In the Tractores written by an unnamed Norman about 1100 the power of the king is exalted; by unction he is sacramentally transformed; he is christus Domini; he has been turned into a sanctus; and his office is in some way a reflection of God’s own authority. Somewhat later the mosaic in Martorana church at Palermo shows Roger II getting his kingdom direct from the hands of Christ himself. Such ideas of Christ-centred kingship were weakening in the later eleventh century; but conquering Norman rulers like William held fast to them. We noted earlier how he was hailed by specific royal laudes; in these litanies the Virgin Mary, St Michael and St Raphael were invoked on his behalf; and he was thus recognized as one of the few divinely appointed rulers of western Christendom.[449]
Though the situation had not yet been reached when an open conflict between church and state in England could break out, there were moments of strain, showing the lines on which dispute was sure to emerge sooner or later. After Hastings a papal legate in Normandy drew up an elaborate code of penances for every man killed in the battle, with a severity that varied according to the status and motives of the killer; there were also penances for woundings and killings before or after the battle. We cannot believe that these injunctions were ever seriously applied; but they bring out the way in which Rome considered itself to have been in ultimate control of the operations. In the years 1079-81 Pope Gregory (Hildebrand), seeing that William was meeting setbacks on the continen
t, tried to exert pressure. Exultant at having humiliated the German emperor, he felt that he could at last deal with William. He demanded Lanfranc’s appearance at Rome; he put the province of Rouen with Sens under the primacy of Lyon; he asked for the payment of the interrupted Peter’s Pence; and he finally brought up the need for William to admit himself a papal vassal. He was basing his case on the new canon law and hoped to have Peter’s Pence interpreted as an old form of vassalage. William made a plain reply:
To Gregory, the most excellent shepherd of the holy church, William by the grace of God the glorious king of the English and duke of the Normans sends friendly greetings. Hubert the legate you sent me, most religious father, has urged me to do fealty to you and your successors and give better thought to the money which my predecessors used to send to the church of Rome. The latter I accept; the other I refuse. It was never my purpose, and it is not now, to do fealty. I neither promised to do it, nor do I find that my predecessors ever did it to your predecessors. The money has been collected negligently during the three years I have been in France; but now by divine mercy I have returned to my kingdom, I am sending you through Hubert what has been collected, and the balance will be forwarded at a convenient opportunity through the envoys of our vassal, archbishop Lanfranc. Pray for us and the state of our realm, for we have always loved your predecessors and it is our sincere desire to love you above all others and to hearken to you most obediently.[450]