The Edge of the World: How the North Sea Made Us Who We Are (25 page)

Gratian defined custom as ‘the kind of
law established by usages and recognized as an ordinance when an ordinance is
lacking’. Without a written ordinance, a case had to be judged by the law of the
litigants’ region, so even a papal judge delegate like Vacarius had to learn the
customs in each place as he went from Canterbury to York to teaching law in Lincolnshire
and finally ending as a prebendary in Yorkshire.
⁴⁸
Law was still often a matter of
local habit, of local knowledge.

Without strong states to enforce a universal
law, it was likely to stay that way. The long struggle between popes and emperors was a
problem, since the secular had no strong reason to help the spread of what was
originally Church law. The Emperor knew his own power rested on custom, and on peoples
who valued those customs and whose support he needed. Popes might lay down the law in
Rome, the law school at Bologna might put the rules in order and teach them, but on the
edge of the world the
ius commune
, the ‘common law’, had to argue
its way, negotiate and compromise, take second place especially when Pope and Emperor
were at loggerheads. Written rules were trimmed and qualified, sometimes until they were
barely recognizable. Law was several rival works in progress for centuries, Church law,
canon law, private law, public law, and the memory of what your grandfather always
did.

Then, in 1215, the Fourth Lateran Council
decided to condemn the settlement of disputes by duelling; priests should not be
involved in a legal event which always ended with spilled blood. The Council also
forbade priests to bless or consecrate any of the elements which went into a trial by
fire or water. In 1222, Pope Honorius III went even further: he banned ordeals from
secular law. The ordeal was
stripped of its
holiness and its logic went away, and law had the advantage. True, the Church had to
keep on banning and banning because ordeals continued – witches were still being thrown
into ponds in the seventeenth century – but anyone going to trial by ordeal had been
warned that God was not coming with him.

This was an old argument. Popes from the
ninth century denounced the very idea of ordeals; Agobard of Lyons said they were wrong
because ‘God’s judgements are secret and impenetrable.’
⁴⁹
God
was not to be bullied into telling what He knew. Church lawyers from the start of the
twelfth century, like Ivo of Chartres, approved of ordeals only when all normal means of
proof had been exhausted; although he did for some reason approve of using the hot iron
when a man was accused of bedding his mother-in-law. Snobbery crept into the arguments,
a kind still familiar any time an English judge has to sentence a middle-class
professional: since ordeals were supposed to deter the very worst crimes, so Stephen of
Tournai argued, they should be used only on the lower classes, whose morals were less
secure.
⁵⁰
The middle classes never do think they need as much punishing.

Peter the Chanter, who taught theology at
Paris and was the
cantor
at Notre-Dame, had a personal interest in the matter
of ordeals.
⁵¹
He’d once been consulted by a man wrongly accused of murder who
had been given a chance to clear himself through the ordeal of cold water. Peter talked
all the right theology and told him it would be a sin to submit to the ordeal. The man
refused, and he was hanged.

Peter still thought ordeals were sin,
because they were a way to tempt God to intervene in human affairs. He wondered why,
when the ordeal was a duel of champions, each side worked hard to find the best fighter
he could; nobody seemed to trust God’s judgement. He worried how holy a champion
could be when his clear, sometimes paid intention was to kill another man. He was also
suspicious of the way ordeals were conducted; a guilty man could learn to blow out all
the air in his lungs and sink in cold water as though he was innocent, and when three
men were made to carry the same hot iron, the last one had a clear, unfair advantage as
it cooled.

He collected stories of ordeals that went
wrong. A man was
accused of stealing from
the Pope, failed the ordeal of hot iron and paid his dues; but then the stolen goods
turned up in someone else’s hands. Two pilgrims took the Jerusalem road, but one
of them was late returning, and the other was accused of his murder. The man underwent
the ordeal of cold water, proved too buoyant for his own good, and was hanged. Very soon
after that, his ‘victim’ arrived home, having made a brief sidetrip to the
shrine of St James of Compostela.

Even so, it was not injustice that turned
the Church against ordeals; it was the notion that a priest was a special kind of man,
apart from others. He was forbidden now to marry, and encouraged to be chaste. He had
professed his faith; he was a professional. There were many other literate men to run
the bureaucracy of the new kinds of state, so priests were not obliged to take on that
duty. They could stay apart from the ordinary world. If they were going to keep that
separation, they could hardly continue with the ordinary and secular business of the
ordeal; and since ordeals depended on their blessing, their absence changed the ritual
for ever.

The lawyers were ready. Around 1150 there
were scholars of law teaching classes in a few places, and some of them worked the
church courts, but there was nothing you could call a legal profession in most of
Europe. There were men called
advocati
, but it was a slippery word, sometimes
meaning just a witness, sometimes the patron of a church or the champion in a jousting
duel, sometimes an adviser to a judge and just occasionally what we would mean: the one
who argues someone’s case in court.

That had all changed by 1230: a profession
had formed. Lawyers were trained formally at the newly founded universities, which
started with clusters of canon lawyers at Paris and at Oxford, a town one scholar monk
said was filled with lawyers. They were making a living and quite often they were
claiming the same kind of
professio
, the solemn statement of intention, that a
monk or a priest would make. Judges would hear only proper, qualified lawyers, which
meant that lawyers could close off their profession. They were reviving a Roman
tradition, but carefully; they refused the tradition
mocked by the poets Martial and Juvenal, which was the
underpaying of advocates with, say, a sack of beans, a mouldy ham, old onions, ordinary
wine or just a handful of spices.
⁵²

Sometimes these men were true scholars of
the law; sometimes, ‘after having heard barely half of one lawbook they arrogate
to themselves the task of pleading publicly’, as a thirteenth-century Archbishop
of Canterbury complained. The awful standards of the worst ones made it even more
important to restrict the courts to men who had studied seriously, three years at least.
They were the aristocracy, they thought, of a business in which proctors did property
deals, pulled strings and found things out, while notaries acted as though they were
much more than simple scribes and charged accordingly. In the church courts lawyers
reckoned they were much like priests. They also wanted at least the social standing of
knights, although they much preferred to be considered noble.

This was not everyone’s opinion. The
woman-hating poet Matthieu of Boulogne very rarely puts women above men, but he said
lawyers were even worse than whores, because whores sold only their arses while lawyers
sold a nobler organ, the tongue.
⁵³
They certainly wanted to be paid
for their experience and their expertise, not just their time. In
Piers
Plowman
, the author William Langland has a vision of barristers-at-law who
‘wouldn’t open their lips once for pure charity’s sake. You’d
have more chance of measuring the mist upon the Malvern Hills than of getting so much as
a “Hmm-er” out of them, without first putting down cash for it.’
⁵⁴
Priests in England had a list of questions to ask lawyers in the confessional, just in
case they had forgotten any sins such as helping a client perjure himself, or using
abusive language to cover ignorance, or overcharging a client; and they include a sin
they considered just as grave: ‘were you ever content with a paltry salary, say
four or six pence, while acting … in a large case …?’
⁵⁵

Being professional proved a most powerful
idea. It depended on the schools and the teachers that banded together in the newly
founded universities, in Oxford and in Paris in the North, and the idea of a
qualification: a degree. Judges would hear only the qualified. That invented a class of
lawyers who were licensed to talk in courts as well
as read the books, which invented the very idea of a
professional class, which in turn became the basis of the idea of a middle class –
people with power based on their expertise, neither knights nor peasants but able from
the middle to tell both what to do.

Doctors of medicine watched the lawyers
devise all this: the university training, the special knowledge, the honorific degree,
the social climbing and the income. Doctors wanted to be professionals, too.

The textbook law of Gratian and the lawyers
was new in the North, but it was needed: there was such dizzying change in the new
merchant towns round the North Sea, such unsettling of classes and movement of persons
and a constant flow of foreigners and foreign ideas that citizens needed some constant
way to sort life out. Where riches used to belong to nobles or the Church, now they were
shared by new classes of merchant and dealer doing business for themselves; the women
and men who had once been firmly attached to someone else’s land could come to the
cities and make new lives.
⁵⁶
All this change was here and now,
so logically the place to find stability was in the distant past.

The law of the Roman Empire was a powerful
memory in Italy, the mould for local customs. When it became the basis of the
Church’s laws, and the civil law that was modelled on them, it was a good fit.
Contrariwise, north and west of Italy, over the Alps and down the Rhine and across the
North Sea, this kind of law had travelled only erratically and piecemeal. Some
territories had never known the old imperial rule of Rome and were not enthusiastic
about the new kind. Some had preserved their own laws and customs even under an emperor
as ambitious as Charlemagne. There was a long history either of resistance or of
downright indifference to grandiose ideas of a common, universal law: the
ius
commune
.

Inevitably, though, under pressure from the
new men who wanted to buy their position in the world, the old customs had to
change.

Towns and cities were filling with classes
of newly rich people, who did not have any strong connection to some rural base. The
reason they wanted land was the reason land was not so easily for sale:
property was a family’s whole identity as well as
their wealth, their name and history as well as future income in a most uncertain world
and the prospect of money to buy care and attention in old age. Land stayed mostly in
the family line; it could hardly ever be legally sold, transferred or given away.

Family quarrels were mostly about which
heirs or relatives had the right to dispose of land, and if those disputes could not be
resolved the way people liked, then they started wrangling about anything growing on
land or stored in a house, down to the provisions left in the pantry and cellar.
Anything that belonged to the house was passed on with the house: in England, that
included the hounds of the house, along with the mangers, doves, ovens, shutters and
anvils. If it was moveable, then it could be divided and sold off. There were court
cases in Ghent over trees, since wood was scarce and valuable as fuel and building
material, and forests were a noble asset; but apple trees were reckoned moveable and
saleable because you pick the fruit, as were willow trees because you cut the new gold
branches in spring to make ties and to weave seats and fences. Houses, too, were
considered moveable, which makes some sense when you remember that any house owner might
want to divide up or rebuild or let out her or his house without worrying about handing
on to the heirs exactly the house he inherited; moveable really meant changeable. It
also meant saleable. The new Roman laws allowed that, custom was in the way, and the two
were at perpetual war over who got to inherit what, and how.
⁵⁷

The law was needed, too, in the risky
business being done even by the holiest of men. Some abbots had a head for business, but
not all. Cistercian monks came to the Yorkshire dales to run flocks of sheep on
wasteland, and live from the sale of wool. They sometimes needed cash and borrowed it,
and sometimes acted as middlemen between the small farmers and the cloth merchants,
offering credit to both. They paid out cash to the farmers for wool to be supplied in
the future, and since it would be immoral to charge interest, they set a delivery date
that everyone knew was impossible; then when that date passed, they collected a
‘fine’ for the sheer inconvenience of having to make a second visit to
collect the goods. They also advanced
cash
to landowners in trouble with moneylenders, and so their estates grew and grew. Bishops
and royals left money with them, a kind of current account on which cheques, or at least
mandates, could be drawn. The monasteries of their austere order accidentally became
banks: strongrooms for kings, merchants and popes, sources of credit for farmers. What
they lacked was capital; they were not thinking in those terms. If things went wrong,
then the money they owed, the money they had at risk, could be a disaster, as it proved
when the king shut down the Jewish moneylenders and became the monks’ main
creditor. Their resources were not exactly liquid; they were churches, cloisters,
dormitories. Without the resources, the ideas or the cash to save themselves, the monks
made mistakes and then they crashed. Eighteen of their houses, and Fountains Abbey
itself, were mortgaged and foreclosed at one time or another.
⁵⁸