Post-classical history

Chapter 1
In Good King Edward’s golden days

According to A. A. Milne, the author of Winnie the Pooh, King John was not a good man: ‘he had his little ways’. King John’s ‘little ways’ have earned him a prominent place in the pantheon of infamy. It was to curb them that Magna Carta was first devised. From television explorations of ‘The Most Evil Men in History’, to Ridley Scott’s Robin Hood, King John has generally been portrayed as the most gruesome of pantomime villains. His reputation for duplicity and worse is at least seven centuries old. Writing in the 1230s, the English chronicler Matthew Paris declared that ‘Black as is Hell, John’s presence there makes it blacker still’. These sentiments were enthusiastically echoed by 19th-century historians who became the first properly to explore the chronicles and documentary evidence for John’s reign. According to William Stubbs, doyen of this Victorian school of history, King John, who ‘defied God by word and deed all his life’, was polluted by every sin that could disgrace a man. Attempts since the 1960s to rehabilitate King John, to suggest, for example, that he was a competent military commander and a more than competent administrator, have not fared well. Instead, the modern consensus is best summed up in John Gillingham’s memorable phrase, ‘King John was a shit!’. There have been at least twenty-three popes named John (twenty-five if one counts the two John Pauls), two kings of France, six of Portugal, and no fewer than eight emperors of Byzantium. There has been only one King John of England. When it was rumoured, in the 1370s, that John of Gaunt, duke of Lancaster, was about to claim the throne of England, usurping the rights of his nephew, Richard II, it was Gaunt’s inauspicious name that inspired the outcry ‘No more King John!’. It was the crimes of the original King John that led directly to Magna Carta, but to understand those crimes – they included, so the story goes, murder, adultery, apostasy, treachery, and, worst of all, incompetence – we need to return to the 12th century and to the family, the Plantagenets, from which John sprang. Magna Carta was not merely a response to the crimes of one particular king. It was directed against the excesses of an entire dynasty.

King John was the youngest of the six legitimate sons of King Henry II of England. He and his brothers sprang from a family that was French in language and culture. Their father, King Henry II, was the first member of the Plantagenet dynasty (named, perhaps, from the family’s symbol, the broom plant or ‘plante de gênet’) to have ruled over England, yet Henry was born not the son of a king but merely as the eldest of the three sons of Geoffrey count of Anjou, ruler of Angers and the cities of the Loire valley placed under ‘Angevin’ (from Angers/Anjou) authority. The rule of Henry II and his sons is therefore known collectively as ‘Plantagenet’ or ‘Angevin’ kingship, and in the minds of historians ‘Angevin kingship’ is necessarily associated with arbitrary or brute royal power, in the ultimate extreme with what contemporaries would characterize as Plantagenet ‘tyranny’.

Nineteenth-century historians were inclined to regard the Plantagenets as alien ‘Frenchmen’ imposed upon a freedom-loving English population. But this is drastically to underestimate the complexity of medieval English society. In reality, by the 1120s, let alone by the 1190s, the ‘English’ barons were themselves a mongrel breed of French, Norman, and Anglo-Saxon descent. Bi- or trilingual (in French, Latin, and English), they were lords of a cross-Channel polity, in which the wealth of England supported adventures as far south as the Loire or the Pyrenees. England had undergone a traumatic Norman Conquest after 1066, but it would be wrong to suppose that this marked a complete break in English history or that Norman and English traditions of law and government were thereafter strictly segregated. On the contrary, the customary laws of the Anglo-Saxons were to a large extent preserved, including most famously the idea of the jury of twelve men, responsible in English law from at least the 1160s until 1879 not just as a ‘trial jury’ for determining guilt or innocence but as a ‘jury of presentment’ for ‘presenting’ suspected criminals for trial (in some ways equivalent to the modern American ‘Grand Jury’, for the investigation, not merely the trial of wrongdoing). English techniques of government were readily adopted by the new Norman conquerors and were exported to Normandy. For example, the kings of England before 1066 had routinely communicated their instructions to the localities via ‘writs’ (brief written mandates). This was a technique unknown to the Norman dukes, but by the 1120s had become ubiquitous in Normandy as in England.

What was peculiar about the Plantagenet as opposed to the Norman kings was not their Frenchness but the particular part of France from which they derived. The county of Anjou had long been regarded as a rival to the duchy of Normandy from which the majority of the new lords of the Anglo-Norman empire sprang. Even so, it would be risky to suppose too clear an apartheid between accents or provincial allegiances. Nor were all Frenchmen necessarily seen as the pledged enemies of English freedoms. ‘Liberty’ may to some extent already have been regarded as an especially English birth-right. It was for their victories against the ‘tyrants’ of the late-Roman world that the Anglo-Saxon peoples had been commemorated, not least by the Venerable Bede, the most influential of early medieval chroniclers. Monks and churchmen of the 8th century, reacting against the stern authority of King Offa, began to embellish their title deeds with claims to ‘liberty’ conceived of as an abstract opposite to slavery or the tyranny of kings. But this did not rule out the possibility that Frenchmen, and even French kings, might act as liberators rather than tyrants. It was as just such a liberator (from the oath-breaking, misgovernment, and bad laws of King Harold) that William the Conqueror, the first of the French/Norman kings of England, was portrayed following the Conquest of 1066. A century and a half later, greeting an invasion of England led by Louis, the son of the king of France, in the immediate aftermath of Magna Carta, the Anglo-Norman-Welsh writer, Gerald of Wales, proclaimed Louis as yet another French libertator: ‘The madness of slavery now ends; times of liberty are granted; English necks are freed from the yoke.’ This was a cross-Channel society, a seething coalition of peoples and provinces governed by a cosmopolitan political elite. Whether in any meaningful sense it was a society to which we can apply concepts such as nationhood, let alone statehood, remains a hotly debated topic. Whatever ‘national’ sentiment existed, the majority of the population – illiterate, bred to the land – served merely as passive and impoverished observers of the politics of the great. This was a chessboard world of kings, bishops, knights, and pawns, and the chessboard has always been a place of supranational, multilingual rivalries.

The dynasty of Henry II owed its rise to Henry’s father, Geoffrey Plantagenet, the grandfather of King John, who in the 1120s had married Matilda, widowed daughter of Henry I, King of England, himself the last surviving son of William ‘the Conqueror’. When Henry died in 1135, with no direct male heir, Geoffrey, Matilda, and their sons, including the future King Henry II, inherited a claim to the English throne. It was a claim that was bitterly disputed. The Angevins were the traditional arch-enemies of the Normans. Matilda was a woman at a time when succession through the female line was far from universally accepted. In 1135, immediately after Henry I’s death, the late King’s favourite nephew, Stephen of Blois, moved to seize the treasury and principal cities of England, staging what was in effect a coup d’état. Stephen was crowned by the Church. A large number of the barons of England, who had previously sworn oaths to recognize Matilda as heir to the throne, now broke these oaths and proclaimed Stephen as king.

Stephen’s was by no means the first such coup in English history. At the death of his elder brother, William Rufus, Henry I had seized the late king’s treasure, gained control of London, and had himself proclaimed king despite the existence of other claimants. Rufus had himself taken the throne of England despite the claims of his older brother Robert, the Conqueror’s eldest son. As this implies, and as a result of the great upheaval of 1066, there was no longer clear consensus as to whether right or might should determine succession to the English throne. Ultimately, God alone could judge the outcome of a succession dispute, as he had judged the Battle of Hastings in 1066, through bloodshed and a great ordeal in arms. So that their seizures of power might be ‘justified’ (that is to say, cloaked in a largely spurious rhetoric of ‘justice’), both Henry I, in 1100, and Stephen, in 1135, issued ‘coronation’ charters, declaring their intention to rule according to custom and law, repudiating tyranny and deliberately blackening the memory of their immediate predecessors in order to proclaim their own fitness to rule.

Henry I’s coronation charter is of particular significance to the story of Magna Carta since it was used as model by the barons of 1215 for the concessions sought from King John. In just over twenty clauses, it spells out Henry I’s determination to rule justly. The king would thus ‘free’ the Church, ending the practice by which Henry’s father and brother had collected the revenues of churches between the death of one bishop or abbot and the election of another. All such evil customs would be abolished. The king would reduce his interference in the inheritance and marriage practices of his barons, in effect recognizing his obligation, in accordance with the teachings of Christ and the Gospels, to protect the rights of widows and orphans. Rather than charging a swingeing fine (known as a ‘relief’) from his barons to inherit their fathers’ lands, the king would restrict himself to a ‘legitimate and just relief’. Widows would be allowed the lands set aside for them by their husbands or their families (their ‘dower’ and ‘marriage portion’). They would not be forced by the king to remarry against their consent. Those fearing death should be allowed to make wills disposing of personal property. The goods of those who died intestate should be distributed by their families rather than by the king. Those who offended the king should be fined according to the gravity of their offence, rather than risk confiscation of their entire estate. In the case of certain specified royal prerogatives (the king’s right to take particular taxes, his collection of debts owed to previous kings, his control over the minting of coin, his right to set aside land as ‘forest’ or hunting reserves in which neither the animals nor their habitat could be disturbed on pain of drastic punishment), Henry I pledged himself to a degree of moderation. Finally, he agreed to confirm the law of Edward the Confessor (the ‘lagam Edwardi regis’) and to abandon anything seized unjustly since King Edward’s time, in effect establishing a mythological golden age of justice before 1066 to which the fallen standards of present times might be restored.

During his 35-year reign, Henry I kept virtually none of the promises set out in his coronation charter. The appeal made in 1100 to the past and the good old law was nonetheless powerful. In the much-conquered land of England, as in many societies confronted with fundamental change, custom and tradition became the watchwords of those bewildered by the unpredictability of current affairs. In particular, the law could be seen as embodying fundamental principles, of justice and equity, preserved across even the widest gulfs of conquest and disorder. Edward the Confessor himself, prior to his coronation in 1043, had sworn to uphold the laws of his predecessor, King Cnut, and Cnut, although a Danish usurper, had almost certainly sworn to observe the laws of England after seizing the throne in 1016.

Oath-taking, by kings as by their subjects, was an essential feature of these arrangements. It was for the breaking of their oaths that both King Harold in 1066 and King Stephen after 1135 were stigmatized as tyrants and usurpers. As this in turn suggests, beyond such oaths, there was very little sanction short of rebellion that could be applied to a king who broke his promises. Oath-taking mattered because, in an age without effective sanctions or independent appeals’ tribunals, the consequences of oath-breaking could prove disastrous for individuals as for nations.

Although the promises of early kings to uphold the law had not necessarily been set down in writing as ‘coronation charters’, the written law codes of English kings, from Ethelbert of Kent in the 600s to Ethelred in 1014 and Cnut after 1016, were already associated with the process by which kings were deemed fit to rule. Ethelbert’s code, like many of those that followed, was written in the Anglo-Saxon vernacular. As a result, it is to be distinguished from other such codes issued on the continent, most notably from the so-called ‘Salic Laws’ of the Franks, written in Latin and seeking to imitate Roman imperial practice. Ethelred’s code of 1014 invoked nostalgia for the ‘good’ laws of the past as a model of how kingship itself should operate. All such law codes were intended to give the impression that the king stood at the head of the law, as God’s vicar on earth, proclaiming justice for his subjects and issuing laws as both a function and an advertisement of his exalted status.

Once again, there was nothing new in this. The issuing of laws, the deliberate blackening of a predecessor’s reputation, and the promise to rule better in future were things already recorded of the Roman emperors, of the kings of Old Testament Judea, and for all we know of the very first rulers to emerge from the prehistoric shades. As long ago as the 6th century BC, the kings of Mesopotamia, the first dynasty to state its claims in something approaching modern writing, had their public monuments carved with inscriptions proclaiming their legitimate right to rule, their descent from kings of the past, and their intention to govern as intermediaries between the realms of heaven and earth. Law and its public proclamation was already a defining feature of civilization. In Homer’s Odyssey,the greatest of all classical epics, it is not just their consumption of human flesh but their inability to organize public assemblies that marks out the Cyclopedes as beyond the bounds of civilized society, lawless and hence barbaric.

By proclaiming his ability to offer good law, in 1100 Henry I staged a successful bid for the throne of England. Stephen’s coup of 1135, by contrast, plunged England and Normandy into twenty years of civil war. Arrests at court, the fear of treachery, accusations of betrayal, and the ravaging of rival baronial estates, all served to poison relations among the Anglo-Norman ruling classes, ensuring that the scars of war remained tender long after peace was theoretically restored. In the process, there was a bruising, though still hotly debated, lurch in the balance between royal and baronial power.

England was a much governed land, since long before 1066 divided into shires and hundreds, accustomed to traditions of central and local government in which the king’s authority, communicated by written instructions (‘writs’) dispatched to sheriffs and other local officials, commanded at least superficial assent. This system had survived the Norman Conquest of 1066, albeit overlaid now by a tradition of ‘feudalism’ in which, as a result of conquest, all land was supposed to belong ultimately to the king and hence could be offered by the king to his faithful supporters in return for homage and service in the king’s armies. Those holding their lands directly from the king, known as barons or ‘tenants in chief’, used their landed resources to reward their own followers, establishing a distribution of the property of England in which a small elite, composed of knights holding land from barons, and barons holding their land directly from the king, lorded it over the vast majority of the population, itself divided between freemen, able to marry or go where they pleased, and serfs, generally bonded to their land, unfree, unable to marry without purchasing their lord’s permission. Historians today shun the word ‘feudalism’, invented in the 18th century as a pejorative term to describe the lordly exploitation of the lower classes that characterized pre-Revolutionary France or Russia. Nonetheless, ‘feudalism’ remains a word that, if it did not exist, we would find it necessary to invent.

Many of the practices described in Henry I’s coronation charter, and later in Magna Carta, were the consequences of that ‘feudalism’ introduced by the Norman Conquest. As a result of 1066, all barons in England were deemed to hold their lands from the king, a situation that had not prevailed, or at least whose precise terms had never been so clearly defined under Anglo-Saxon rule. The king as overlord acquired a series of lordly privileges that historians sometimes refer to as ‘feudal incidents’ (the ‘incidental’ consequences of lordship). These included jurisdiction over widows and orphans, and the right to demand particular payments resulting from the baronial life cycle: at inheritance and succession, at marriage and at death. In theory, since all land was held from the king, the king might deprive a baron’s son of the right to succeed to his father’s lands. This, however, was a drastic step, generally only taken in cases of outright idiocy or rebellion.

Rather like the powers of the modern British Parliament (which in the standard theoretical formulation can do anything save turn a man into a woman or a woman into a man – a statement which itself may need recasting in light of recent medical procedures), the authority of a medieval king was vaster in theory than in any practice that a king would dare attempt. From at least the 1140s, indeed probably since the 1070s, it was accepted tradition that land passed from father to son without arbitrary intervention from the king. Nonetheless, if there were any hitch in this pattern – if, for example, a baron died leaving female heirs or grandchildren or only nephews, or if the land, for want of a direct heir, ‘escheated’ (that is, returned to the king as overlord) – then it was the king’s will that determined what would happen next. In these circumstances, royal favour had to be bid for and bought by whichever potential heir had the deeper pockets. At times of crisis or uncertainty, or when the king himself faced particular financial pressures, ‘feudal incidents’ could become a major source of tension between the king and the political elite.

The Norman kings, like their Anglo-Saxon predecessors, made laws that they expected to be obeyed throughout their realm. Such laws were not so comprehensive as to govern all disputes or eventualities. A large part of criminal jurisdiction, as of the resolution of quarrels over land or property, remained a local affair, very much a question of self-help by those for whom feuding was a common pastime and for whom might was a great deal more apparent in their daily lives than any sort of abstract right. Presented as semi-official law collections attributed to ‘good’ rulers of the past, in particular to kings Cnut, Edward the Confessor, William I and Henry I, a series of manuscripts circulated in 12th-century England purporting to set out the particular codes of law that these kings had issued. Many were founded upon wishful thinking and the attribution to previous kings of laws that ‘ought’ to have been upheld but which rarely were. None can be considered a comprehensive statement of past, let alone of present, law. The courts themselves were governed first and foremost by the king and his whims, and thereafter by custom and by communal memory. Nowhere was there anything like today’s Statute Book or Law Reports from which lawyers, litigants, and the public at large could learn the exact condition and letter of the law.

One of the most influential guidebooks to legal procedure written at this time, On the Laws and Customs of the Realm of England, attributed to Ranulf de Glanville, Henry II’s chief legal officer of the 1170s and 1180s, begins with a claim both that ‘English laws are unwritten’ and that ‘it is utterly impossible for the laws and rules (leges … et iura) of the realm to be reduced to writing’. For this, Glanville blamed the sheer profusion of laws, and the ignorance of those who might write them down. Hence the insistence by later legal historians that the ‘Common Law’ of England was a matter of precedent and the slow evolution of custom derived from a multitude of individual cases: case law, not statute law. This is a potentially misleading statement since there were statutes in plenty. What there was not was any systematic codification of these statutes into a definitive statement of English ‘Law’. To this extent, the ‘Common Law’ of England has to be distinguished from other legal systems, most notably from Roman civil law, still in the 12th century enormously influential in southern Europe, codified and collected as long ago as the 6th century by the Emperor Justinian, and thereafter circulating throughout the Middle Ages as the so-called Corpus Iuris Civilis. In the same way, by the 1160s, the laws of the Church, so-called ‘Canon Law’, although governed by a multitude of precedents rather than by simple statute, had been systematically digested into textbooks, most notably the Decretum of the Italian lawyer Gratian, in which were organized many hundreds of the individual papal letters (or ‘decretals’) in which the law of the Church was set out.

Since Glanville’s text takes the form of a commentary on legal procedure, explaining the use and meaning of the dozens of individual ‘writs’ through which the king controlled the activities of his courts, even after Glanville there was nothing that could be considered an officially sanctioned collection of English statutes. The earliest books of statutes in this sense date from the late 13th century and even then recite only the most recent of royal legislation, not the great bulk of customary law which such legislation was intended to adjust. Nonetheless, the willingness of 12th-century collectors to compile legal manuscripts in which Anglo-Saxon and later laws were presented in coherent series, for example in the great book of precedents compiled for the bishops of Rochester in the 1120s (the so-called Textus Roffensis) in which the coronation charter of Henry I was inserted as if it were merely the latest in a series of statutes stretching back to the 7th-century Anglo-Saxon law code of king Ethelbert of kent (d. 616), testifies to a desire to find in the law not only practical measures for the regulation of crime or the rights of property but a semi-divine tradition, hallowed by antiquity, in which the rulings of modern kings could be seen to stand in direct relation to the law codes of their ancestors. Those ancestral codes in turn stood in sequence with the books of law bequeathed to Old Testament kings of Judea by Moses, the prophets, and ultimately by God.

In all of this, the maintenance of public peace and the administration of what might be considered justice remained essential attributes of kingship. From the king’s point of view, the administration of justice not only advertised his authority but supplied substantial profits in the form of fines made in his courts, bribes paid for the doing of justice, and all of the other means by which the machinery of the law was oiled and made to run smoothly. Once again, as expressed in the opening sentences of Glanville’s treatise On the Laws, written in praise of King Henry II, the father of King John:

Not only must royal power be supplied with arms against rebels and peoples who rise up against king and realm, but it is fitting that such power be adorned with laws for ruling peaceful and subject peoples.

We should not exaggerate the degree to which England was centrally governed, either before or after 1066. The Anglo-Saxon law codes were to a large extent intended not to assume full royal administration of the law but merely to place the king at the head of the law-making process. What was at stake here was the regulation of what remained essentially private feuding, with the king and his advisors merely establishing a tariff of payments (wergild) to be paid to the victims of crime or their kin. Ethelbert’s code, for example, reads for the most part rather like the small print to a modern personal-injury insurance policy: ‘For the four front teeth, six shillings each; for the tooth that comes next, four shillings, that which comes next, three shillings’, and so on through a bewildering array of the potential consequences of inter-personal violence.

Just as the king did not claim to administer, merely to regulate, these processes, so there was much that went on in the shires that was not controlled from the centre. In the absence of any effective police force (an absence not effectively remedied until the late 19th century), self help remained the principal means to secure justice or right. Even the sheriff, the king’s principal local officer, depended upon hired muscle (the serjeants of the peace) and the raising of a county ‘posse’ (literally, a bunch of ‘can-doers’) when called upon to deal with the more severe forms of lawlessness. This was a world closer to that of the Wild West and the lynch mob than to Scotland Yard. As late as 1221, for example, a criminal convicted in the king’s courts in Gloucestershire was sentenced to blinding and castration at the hands of his victim’s family, the young men hurling his testicles around in a brutally staged act of vengeance.

Even the Church, for all its commitment to peace, offered a system of law and discipline that was far from entirely centralized or universal. The great chapter houses of the English cathedrals or monasteries, in each of which the canons or monks met daily to discuss their business and to administer the laws of their community, demonstrate that communal decision-making and debates over justice were endemic to medieval society. Yet even these ‘chapters’ remained intensely localized affairs. England was a land of many hundreds or even thousands of interlocking jurisdictions, each of them jealously guarded against intrusion by its neighbours. For a modern equivalent, we might look to the colleges of Oxford or Cambridge, all of them subjected by common imperatives to the rule of a ‘university’, separated from one another by only a few yards of wall or parapet, yet still individually governed by a hundred or more independent ‘governing bodies’, each with its own particular statutes and customs.

As a unifying and governing principle over and above such diversity, the image of a king ruling by justice and the law remained a powerful one. Above all, the imperative to maintain peace, to allow the king to impose such peace, and hence not to impede his officials or messengers in the discharge of their duties, gained powerful currency. The king stood above the law, or at least above all human laws below those decreed by God. Once again to quote Glanville, himself quoting a famous tag from Roman law, ‘What pleases the prince has the force of law’. A king’s subjects, by contrast, were precisely that: ‘subjected’ to the laws that the king made or interpreted and to the peace that the king sought to maintain.

In the 1140s, as a result of King Stephen’s seizure of power, this entire tradition juddered to a standstill. The king’s peace was shattered. Injustice went unpunished. The unjust enjoyed public reward. The criminal activities of barons or mercenaries were placed beyond the reach of the king’s officers or courts. Even such longstanding symbols of central government as a single silver coinage, stamped with the king’s crowned image, ubiquitous in England since the time of King Edgar in the 970s, were challenged as rival barons minted their own coins, established their own local alliances, and administered their own rough justice, virtually irrespective of command either from Stephen or from the party of Matilda. Having been steered towards centralization and strong royal authority by the first three of its Anglo-Norman kings, England slipped backwards towards baronial self-help and regional power struggles.

It used to be asserted that Stephen’s reign witnessed ‘anarchy’. It is now generally agreed that this is to exaggerate the degree of disorder. In the regions of England closest to his capital city of London, Stephen commanded considerable authority. Taxes continued to be raised to pay the costs of war. In political terms, nonetheless, the outcome was a stalemate resolved only in the 1150s when Henry Plantagenet, son and heir to Geoffrey and Matilda, reached a compromise with Stephen, itself brokered via barons and churchmen acting in the mutual self-interest of the realm. In 1153, a treaty was negotiated in which Henry recognized Stephen’s right to rule. In return, Stephen recognized Henry as his successor to the throne. Once again, setting significant precedents for the events of King John’s reign, the treaty of 1153, like the coronation charters of Henry I and Stephen, was negotiated under the auspices of the English Church. It was not only proclaimed in the English localities but entrusted for safe-keeping, as a written peace ‘treaty’, to various of the greater ecclesiastical archives, most notably those of the archbishop of Canterbury. The Church had emerged, as long ago as the 7th or 8th century, as one of the chief guardians not only of public peace but of the documentary evidences by which such peace was proclaimed. It now played a leading role in broadcasting the king’s peace, through arbitration resolving political disputes to the mutual benefit of all.

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