Foundation (History of England Vol 1) (23 page)

Many of these new towns were built by the command or recommendation of the king, and were known as royal boroughs. The same imperative of profit applied. Thus in 1155 the king decreed that at Scarborough ‘they shall pay me yearly for each house whose gable is turned towards the street fourpence, and for those houses whose sides are turned towards the street, sixpence’.

The older towns, with their foundations in the first century and perhaps even before, continued to expand. They were becoming more self-aware. Their walls were strengthened and dignified; Hull, for example, built the first surrounding wall made entirely out of brick. The association of the leading townspeople, with the mayor as their chief officer, became known as
communia
or
communa
. In 1191 the system of mayor and aldermen was established in London. The leaders of the towns began to resent external interference; the aldermen of London, for example, were quite capable of defying the royal court at Westminster.

The leaders of the towns built walls and gates, with main streets leading directly to the market area. The same trades, such as shoemaking and bread-baking, had a tendency to congregate together. Certain towns were already identified by their principal commodity, so that we hear of the russet cloths of Colchester and the soap of Coventry. The Knights Templar established a town in Buckinghamshire which they named as Baghdad, hoping to create in imitation a great market there; it is now known more prosaically as Baldock. ‘Fairs’ were instituted at Boston and Bishop’s Lynn, Winchester and St Ives. In the larger towns, an entire street might be devoted to a single trade. The population was growing along with everything else. By the late twelfth century London numbered 80,000, while Norwich and Coventry each harboured 20,000 inhabitants.

The original outline of Stratford-upon-Avon, planned by the
bishop of Worcester in 1196, is still visible in the modern streets; houses still stand on the plots where they were sited by the bishop; many of the names of the streets have also survived. A female huckster of the thirteenth century would still be able to navigate the roads of the town. Even a great city such as London still bears the traces of its origin.

The traders of these towns, old or new, helped to develop guilds that enforced standards; these guilds merchant, as they were called, prospered to such an extent that eventually they took over the administration of most of the towns. The guilds had a long existence, dating back to the ninth and tenth centuries, but in their original incarnation they were ‘friendly societies’ of a pious nature; they prayed for the souls of their dead brethren, and supported their members in case of dire need.

Members of the same trade naturally tended to join the same guild; so economic, as well as spiritual, interests played a part. They became organized. They laid down standards of business and manufacture. They refused to allow outsiders to participate in their ‘mysteries’ and instead set up a rigid system of apprenticeship. They had once met in the churchyard or in the town hall, but by the end of the twelfth century many of them had acquired imposing premises of their own commonly known as the guildhall.

Yet they retained their pious endeavours, collecting for charity and for the expenses of death; many of them maintained a chapel, or at least an altar light, at their nearest church. They built bridges and roads, although the improvement of transport was perhaps a matter of self-interest. The craft guilds were also responsible for the sequences known as miracle or mystery plays that were the most important aspect of English drama in the age before Shakespeare. This concatenation of religious, social and economic power is thoroughly medieval.

So the long period in which towns prospered, in the twelfth and thirteenth centuries, was also one in which the sense of urban community was most highly developed. In some respects the notion of a community is specious, however, since the richer townspeople known as ‘the better sort’ created an oligarchy of power concentrated in a small network of families. In Norwich 60 per cent of the wealth had devolved into the hands of 6 per cent
of the population. These were the men who would serve as jurors in the town court and who took up the offices of the local administration. Nevertheless a feeling of common interest was aroused in the maintenance of newly acquired privileges and traditions. In the Commune of London, forged at a time when mutual antagonism between merchants and craftsmen was intense, the voices of the citizens could still be heard shouting ‘Ya Ya!’ or ‘Nay Nay!’ in their assemblies.

This sense of corporate identity was strengthened by the belief that towns were areas of relative freedom. The people who gathered there were drawn together in a commercial pact, and were not subject to the rules of labour service that obtained in the countryside. By the early twelfth century it was established that if a villein resided in a town for a year and a day, he acquired his freedom. The air of the town was different.

We may envisage wooden houses and wooden shops, with vacant plots between them where the hens scratched and where the small horses of the period were tethered. Many of the wooden houses were of two storeys, with the shop on the ground floor and the living quarters above it. Permanent shops were erected, but stalls could be set up and taken down from day to day. In any town perhaps two or three stone houses were owned by the richer merchants.

In Chester a wooden footway was raised above the street of beaten earth so that it became a ‘first floor’ sheltered by the houses above; from there, the pedestrians could ‘window-shop’. In the towns of England dirt and refuse were scattered everywhere, partly scavenged by pigs and kites. The streams running above ground were often filthy with industrial waste and excrement. The noise of bargaining, and of argument, was intense. It was busy, always busy, with the particular stridency and excitability of the medieval period in England.

How much the king’s advisers revised the administration of justice, and how much was Henry II’s own contribution, is a nice question. It is reported that he spent many sleepless nights debating with his advisers over points of law, but that may be a pious fiction. It is
undoubtedly true that in the course of his reign the rule of law was amplified in England; one of his contemporaries, Walter Map, noted that the king was ‘a subtle deviser of novel judicial processes’. He decreed, for example, that royal justices should make regular visits to the shires and take over legal business previously reserved for the sheriff or the county justice. Six groups of three judges each toured between four and eight counties so that the whole country came under their purview. They were based at Westminster, but the central administration was reaching out.

Their activities were of course designed principally for the king’s own profit, as he gathered up fines and other payments; it was well known that the royal courts loved money more than justice, and the king expected ‘presents’ at every stage of the judicial proceedings. A wealthy man, accused of a crime, would offer a large sum ‘for having the king’s love’. In a rough and violent society, it was considered to be perfectly natural. You paid money to see a doctor. You paid money to see a judge. Law was another form of power. It was just becoming swifter and more efficient.

But acts of expediency sometimes have unintended consequences. The imposition of uniform royal justice over the country laid the conditions for the development of common law. National law took precedence over local custom. When law became uniform, it could indeed eventually become ‘common’ to all. Phrases were employed that emphasized this theory of
ius commune
; ‘as the custom is in England’ or ‘according to the custom of the land’ became standard formulas. Men could reduce it to order, and to the claims of precedent; it could be codified and standardized. One of the most important legal works in English history, Ranulph de Glanville’s
On the Laws and Customs of England
, was composed in the reign of Henry II. It is no accident that ‘legal memory’ was deemed to have begun at the time of the accession of Richard I, the king’s oldest surviving son, in 1189. Henry was acting out of self-interest but his measures, more than any other, promoted obedience to the law and assured the coherent administration of justice. He had no interest in reform, and no scheme for it. He acted out of private and selfish interests only, and was motivated solely by the force of circumstances. He did not have any idea where his actions might lead, except to the extent that they afforded
him more and more money. These are the foundations of the mighty edifice of English law. Henry had stumbled upon a system that has endured ever since.

One other unanticipated result issued from the new legal procedures. One of the functions of the judges was to rule on disputes over property. Had anyone been violently dispossessed of his or her land? This was a common problem of the twelfth century where lords, great or small, were always trying to increase their dominion. The judges were inclined to call together twelve local men who would be able to tender advice on the matter. The origin of the English jury is still in dispute, with some authorities placing it within the Anglo-Saxon period, but in the twelfth century we witness at least its systematic use. Within fifty years juries were also employed in criminal cases. Trial by jury replaced trial by battle and the ordeal. The parties involved in these disputes were summoned to the court by writs, which from this period took on a standard form. Writs cost sixpence. The legal system of the country was being created by haphazard and unpredictable means.

Yet all things move together. The creation of royal law, otherwise known as national law, called for a group of skilled adherents to interpret and amend the principles of legislation. There had been no professional lawyers in the eleventh century, and the judges were simply the servants of the king. In the reign of Henry II that happy vacancy ended forever. By the end of the twelfth century the ‘learned laws’ were being taught at Oxford. Around the law courts of Westminster there clustered ad hoc ‘schools’ of law. A group known as ‘men of law’ soon emerged. They organized themselves into a profession of various roles and grades. They ate and drank together, in the various hostels or inns that were at a later date transformed into Lincoln’s Inn, Gray’s Inn, and the others.

One of the paradoxes of medieval society lies in the presence of extreme violence and disorder alongside an appetite for great formality and hierarchy; England was in many respects a lawless society, but it was also a litigious one. The people loved law, just as they disregarded it; they could not get enough of it. It was consoling. It represented authority and tradition, even as they were being flouted. It was like listening to the king’s voice even though,
if you had come to Westminster Hall on a law day, you would have found yourself amid a babble of voices.

The floor of the hall was covered with rushes containing sweet herbs, to curb the odours of the people and of the prisoners. The judges carried with them a ball of linen soaked in aniseed and camomile.

The King’s Bench, the Court of Common Pleas and the Court of the Exchequer had their own panels of judges; the special pleaders were known as sergeants and can be seen as the ancestors of the barrister. It is only to be expected that, in time, the sergeants would be promoted to judges. The professionalization of the law thereby became complete. Pleadings became more technical, and tended to rely upon precedent. We may talk of legalism rather than law. The judges wore scarlet robes and caps of gold silk. The sergeants wore gowns with vertical stripes of mulberry and blue, together with round caps of white silk.

The clarification and standardization of the law meant also that society itself took on a more defined shape. One of the new procedures was known as
mort d’ancestor
, allowing freemen to claim by right their inheritance. Free tenants, in particular, could not be ejected from their land by their lord. But some men were not allowed to plead in the royal courts. The men who were not free, the villeins who held land in exchange for labour services to their lord, were excluded. They had to rely on the smaller local courts for their rights. They were, in other words, still at the mercy of their masters.

It was stated that ‘earls, barons and free tenants may lawfully . . . sell their serfs [
rusticos
] like oxen or cows’. Unfree men were defined as those who ‘do not know in the evening what service they will do in the morning. The lords may put them in fetters and in
the stocks, may imprison, beat, and chastise them at will, saving their life and limbs.’ This is a presentation of the extreme case and, in practice, traditional custom would have preserved many of the rights of these
rusticos
. The lord also had to prove that his man was unfree; as a legal writer said at the time, ‘you must catch the deer before you can skin it’.

The contrast between the free man and the villein had become the single most important social division in the country, underlying the elaborate and intricate hierarchy of roles and functions that already existed. It became the theme of the chivalric romances, with the distinction between
vilain
and
courtois
. The status of the knight was also changed, with the emphasis now on ownership of property rather than military skill or availability for service. In the process the knights adopted a different role. They took up a position in local rather than national society. They became in time the ‘gentry’, a word first used by the Wife of Bath in the
Canterbury Tales
. ‘Gentlewoman’ had appeared by 1230. ‘Gentleman’ emerged forty-five years later. So we have John Ball’s rhyme: