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English common law Trials by LAW IN THE MIDDLE AGES 51 (customary law based on ordeal are precedent) is defined in abolished in In his Summa a treatise commissioned England by King Theologica (Theological Henry III. by King Henry II from Treatise), Thomas his chief minister, Aquinas says human Ranulf de Glanvill. law may be unjust if it conflicts with eternal, divine, or natural law. 1187–1189 1219 1265–1274 1166 1215 13TH–15TH CENTURY 1225 The Assize of Clarendon English King John King Henry III reissues A customary law extends the power of signs Magna Carta, England’s Magna among merchants, Carta, which binds the Lex Mercatoria, the English Crown with a charter of rights evolves as a form of assize courts and affirming that the the king to observe self-regulation of the law and protects international trade. makes use of trial by monarch is not ordeal and jurors in above the law. all men from royal abuse of power. trial procedures. is “the law common to all nations.” hybrid of Viking and Christian laws, came in 1215, when the barons Influenced by Aristotle, Italian with summary justice and harsh negotiated a deal with King John, theologian Thomas Aquinas punishments. The new Norman recorded in a document later called examined the concept of law itself, king, William the Conqueror, took Magna Carta. The king agreed that especially the differences between control of land ownership in a new, he would no longer act outside the the ecclesiastical laws of the feudal system. To do this, he made law. The document also promised Church and civil law, which was a detailed inventory of his realm in that every “free man” should have not concerned with Church affairs. the Domesday Book—a record that access to the law through traveling He identified different types of law, would later supply precedents in assizes and could not be arrested from God-given divine and eternal property law cases. or punished except by established laws, to the natural law that exists legal procedure. universally, to laws devised by A significant innovation in the humans. His view that all types of 12th century in England was the While medieval Europe largely law should conform to overarching introduction of assize courts. These functioned under a dual system natural law influenced legal thought were convened from time to time in of civil and canon law, merchants for centuries to come. towns and cities, presided over by had a greater influence on traveling judges. Assizes wrested European society from the 13th The law and the state control of the law from the Church century onward, instigating England’s legal system was an and bolstered the idea of a common new commercial laws and even example of the important changes law. They also required local jurors international agreements. These that took place in the medieval to give evidence and, after trial by would prove vital to the further period. Until the Norman invasion ordeal fell into disuse, to judge guilt development of trade between of 1066, Saxon rulers had enforced a in a precursor of the jury system. nations and maintained their Another landmark in English law relevance until the modern era. ■

52 IASJGUOSDTJUDGE? TRIAL BY ORDEAL AND COMBAT (6th–12th CENTURY) IN CONTEXT J udging legal cases by ordeal were made to stand with their arms developed from the law codes outstretched; the first one to drop FOCUS of the Germanic peoples, his arms lost the case. Establishing guilt which emerged in the 6th century ce after the fall of the Roman Empire. Guilty parties often paid a fine BEFORE The practice arose where defendants or fled rather than face an ordeal. c. 1750 bce The world’s oldest and plaintiffs were not able to satisfy The innocent—believing they known legal code, the Code of other modes of proof, such as would suffer no injury—submitted. Hammurabi, includes the use providing a sufficient number of The clergy who administered the of trial by ordeal. witnesses to swear to their version ordeals understood this and did not of the facts. Where a defendant was wish the innocent to suffer, so they AFTER unable to provide witnesses or often cheated; “boiling” water 1215 Pope Innocent III bans was considered to be untrustworthy, would be merely hot, for example. clergy involvement in trials by the chieftain or designated judges fire and water. could resort to ordeal. Trial by combat While trials by ordeal were usually 1219 The general use of trials Water and fire administered to the lower classes, by ordeal is abolished under Several forms of ordeal became wealthy parties made more use of English King Henry III. common in England and mainland trial by combat—effectively, judicial Europe. Ordeal by hot water was duels—as a mode of proof. This was 1396 The Battle of the Clans, first mentioned in the Salic Laws of one of the last mass trials the Franks (c. 507–511). The accused If then they do not by combat, takes place in had to retrieve a stone from boiling give the oath, let him go Perth, Scotland. water by dipping his hand into it. to the threefold ordeal. (The depth of the water depended Woodstock Code of 16th–17th century In Europe on the severity of the crime.) The King Æthelred, 997 and Colonial North America, hand was bound and unwrapped ordeal by water is used in 3 days later; if it had healed, the witch hunts, where sinking is accused was deemed innocent. taken to be proof of innocence. Ordeal by iron involved walking on red-hot irons or coals and examining 1819 Trial by combat is the wound to see if it had festered abolished in the UK. or healed. Under the ordeal of the cross, the defendant and plaintiff

LAW IN THE MIDDLE AGES 53 See also: Early legal codes 18–19 ■ The Domesday Book 58–59 ■ The Assize of Clarendon 64–65 ■ Magna Carta 66–71 ■ The trial of Charles I 96–97 ■ The Salem witch trials 104–105 because in some systems they were A commoner is One wealthy landowner permitted to hire champions to fight accused of rape, challenges another landowner’s for them, and because, at least in murder, or theft, but there English law, trial by combat was are no witnesses. land rights. available in respect of rights to land, which only the wealthy would have. The commoner is tried by ordeal (a painful or dangerous Common in western Europe from at experience). The wealthy defendant and plaintiff (or their champions) least the 9th century, the practice was imported into England after opt for trial by combat to settle their land dispute. the Norman Conquest in 1066. The defendant escapes The defendant suffers The rules of engagement for injury or wins the combat. injury or loses the combat. trial by combat varied in different countries. In England, each side The defendant is The defendant agreed to the rules under the found not guilty and the loses his land. supervision of the judge, who determined if the case could be plaintiff is fined. decided this way, and gauntlets were exchanged to symbolize that a challenge had been accepted. The combat lasted until one participant was killed, mortally wounded, or cried out “craven” to halt the fight. If the defendant was the loser, he suffered the original penalty for his crime and perhaps additional loss of property. If the plaintiff lost, he had to cede the case and pay a fine. Disuse and abolition In 1215, Pope Innocent III banned the clergy from practicing trials by fire and water. Four years later, King Henry III banned the general use of trial by ordeal in England. Trial by combat gradually fell into disuse, and concerns about the practice paved the way for jury trial. By 1819, when trial by combat was removed from the UK statute book, it had become an antiquarian legal curiosity. ■ Two bishops (wearing miters) judge a duel between two knights in medieval France, where the last trials by combat took place in 1386.

54 IN CONTEXT LTARADWAICVAIENNDED-OAUT WAY FOCUS Divine law THE KORAN (632) BEFORE 610–632 ce The Prophet Muhammad receives the divine revelation of the Koran. AFTER c. 660 ce The first qadis or Islamic judges are appointed. 8th century Abu Hanifa founds one of the first schools of Islamic jurisprudence. c. 840 ce Muhammad al- Bukhari compiles a definitive collection of hadith. c. 900 ce “The gates of ijtihad” are declared closed by Islamic legal scholars, ending the practice of independent reasoning by judges. I slamic law arose from a religious revolution. The divine revelation that the Prophet Muhammad received in the early 7th century ce had at its core the oneness of God. It also brought unity to the Arabian Peninsula, which had been fractured both religiously between Jewish and Christian communities and pagan worshippers of many gods, and politically between large numbers of nomadic desert tribes and more settled coastal states. Although the pre-Islamic period was later characterized as al-Jahiliyya, an age of ignorance, it was not entirely without law. Customary law governed the contracts made by merchants trading in coastal and oasis towns—among them the family of Muhammad, from Mecca.

LAW IN THE MIDDLE AGES 55 See also: The Ten Commandments and Mosaic law 20–23 ■ The Arthashastra and the Manusmriti 35 ■ The Mishnah and the Talmud 38–41 ■ The origins of canon law 42–47 ■ Gratian’s Decretum 60–63 ■ Thomas Aquinas 72–73 The Koran is the source The hadith (sayings and actions of all Islamic law. of Muhammad and his companions) supplement the Koran. If the Koran and hadith do not provide the answer to a specific legal problem, judges may use qiyas (analogy) to see how the Koran or a hadith approaches a similar problem. Ijtihad (independent reasoning) Judges may also use ijma (agreement allows other considerations such among legal scholars on points of Islamic as maslahah (public welfare) to law) to make rulings. guide legal judgments. In the desert interior, blood feuds to the poor—form the Sharia (or number of followers made it even were moderated by negotiations “right path”), which is the bedrock more important that a consistent for compensation between the of the principles of Islamic law. Islamic legal framework was offended parties. developed. Consequently, a system Sources of Islamic law of Islamic jurisprudence, or fiqh, Once the followers of Islam, The Koran is not a formal legal grew up, accelerated by the the new religion Muhammad document. Although there are appointment of qadis or Islamic ❯❯ preached, fled persecution in principles within the Koran that Mecca and found refuge in Yathrib can be applied to situations not (now Medina) in 622 ce, they directly mentioned in its text, it rapidly grew from a small group lacks a means to interpret it. Within of companions into a community a century of Muhammad’s death in (umma) of several thousand and 632 ce, Islam had spread from the needed a law to govern them. Arabian Peninsula across large This was contained in the Koran parts of the world, including South (or Qur’an), the sacred book of and Central Asia, North Africa, and Muhammad’s revelations, which Spain. The huge increase in the was first compiled in 632 ce. Held to be the literal word of God, it Imam al-Bukhari (see p.56), who was both unchangeable and compiled one of the most authoritative sacred, and the guidance and collections of hadith, is buried at this commandments it contained— mausoleum in Uzbekistan. It is an such as the obligation to pray five important pilgrimage site in Islam. times a day and to be charitable

56 THE KORAN A 9th-century Kufic manuscript of a section of the Koran on parchment. Kufic calligraphy is the oldest Arabic script and was the main script used for early copies of the Koran. judges under the Umayyad dynasty the matter or were found to be today. The Islamic community had from the 660s ce onward. They contradictory, a qadi was permitted split in the 7th and 8th centuries were aided in their deliberations by to exercise qiyas, or the use over the question of the succession muftis, legal scholars who delivered of analogy, to find a similar to Muhammad. The majority Sunni fatwas, or opinions on matters of circumstance that was dealt with group adhered to the five caliphs, or religious law. in the Koran or a hadith. If even heads of Islamic communities, who this was not enough, then it was had followed the Prophet and then Among the first matters to be permitted to seek ijma, or scholarly their Abbasid and Umayyad determined was the precise status consensus, which required the successors. The minority Shia held of the sunna, the body of social and examination of the opinion of legal that the leadership should have gone legal practices that guided the scholars. The whole process of through the line of Ali, Muhammad’s Muslim way of life. Islamic law was reason was known as ijtihad, which son-in-law. As well as minor often based on hadith, or sayings allowed for other considerations. differences in ritual, the Shia have and actions of the Prophet, his These factors included istishab their own jurisprudence schools, family, and his companions, but (“continuity”), by which if a matter such as the Zaidi and Jafari, which these did not have the same status had always been considered lend more weight to the independent as the divine word of the Koran itself. permissible (or forbidden), it reasoning of the religious hierarchy continued to be so, and maslahah (such as Iran’s ayatollahs) than the Guidance for judges (public interest), through which taqlid (“imitation”) of past decisions, Legal scholars traced back the the welfare of the community which became more predominant chain of transmission of these as a whole could be taken into in the Sunni schools. hadith, discarding those they account in a judicial decision. discovered to be not well-founded. Crime and the law A popular compilation of hadith by In the 10th century, scholars Islamic law differentiates between the scholar al-Bukhari in the mid- began to rule that all the main legal matters that are compulsory (fard), 9th century is said to have reduced issues had been determined and recommended (mandub), neutral them to a core group of 2,762. that, at most, analogy might be (mubah), reprehensible (makruh), needed to decide new matters in Egyptian jurist al-Shafi (d.820) the light of old decisions. Formal Whoever treads a path detailed a process to help qadis legal schools of fiqh—notably those seeking knowledge, navigate through this difficult founded by Abu Hanifa, Malik ibn Allah will make easy terrain. He said they should first Anas, al-Shafi, and Ibn Hanbal—gave for him the examine the Koran, and if the rise to the Hanifi, Maliki, Shafi, and path to Paradise. answer to the legal problem was Hanbali judicial schools, which are Ibn Majah not found there, then consider the still the most important for Muslims hadith. If these did not cover Compiler of hadith in 9th-century Iran (824–c.887)

LAW IN THE MIDDLE AGES 57 and property law remained the Stand out firmly domain of religious judges, this for justice, established a long-running tension between secular and religious law as witnesses to Allah. in Islamic societies. Whereas once Koran 4:135 the religious hierarchy made—or at least made judgments upon—the law, secular rulers now legislated. These included the Ottoman sultans, such as the 16th-century sultan Suleiman the Magnificent, who built up a body of administrative law, or kanuni. Suleiman the Magnificent was Sharia law today within the secular national legal sultan of the Ottoman Empire when it The idealized view of the Islamic framework. In extreme cases, was at its strongest, from 1520 to 1566. state had been one ruled by Islamic such as the Taliban regime in He was the most powerful leader of the law based on the Koran; hadith; Afghanistan, this has led to Sharia Islamic world in the 16th century. and a partnership between the being taken to be the only source of caliph, the clergy, and qadis. In legal legitimacy. On the other hand, or forbidden (haram). Punishments countries where Muslims are a in some countries, the law has been are prescribed for the last two minority, this balance clearly seen as oppressive toward certain categories. Some types of serious cannot hold, but there have been sections of society, such as women, crime, including murder and sexual calls for governments to recognize and there has been pressure to violations, known as hudud, had the authority of Sharia courts to reform. In Saudi Arabia, for severe punishments laid down in decide on religious matters. This example, it was recognized that the Koran and the hadith (such has proved controversial because forbidding women to drive was as the cutting off of thieves’ hands it has been viewed by some as based more on traditional cultural or the stoning of adulterers). However, the subordination of national law practice than Islamic law. The the evidential requirements for these to Islamic religious law. struggle to define and interpret were greater. For most crimes, two the laws governing the world’s male witnesses (or one male and In Muslim-majority countries 2 billion Muslims continues. ■ two female) were required, but for such as Pakistan, pressure has adultery, four adult male witnesses grown for Sharia law to have a role heretical. This denunciation were needed. was aimed at the Assassins, an Abu Hamid al-Ghazali Islamic sect that regularly sent Partly because it could be assassins to kill opponents. He difficult to find sufficient witnesses, Born in Tabaran, Iran, in 1058, lectured until at least 1110, and many aspects of criminal law were al-Ghazali was appointed died the following year. transferred to state courts under head of the Shafi madrasa the Abbasids in the 9th century (educational institute) in Key works (at roughly the time that taqlid Baghdad in 1091, where he supplanted ijtihad as the core of taught for 5 years. He wwrote Late 11th century The Revival legal reasoning). Although family more than 70 works and was of the Religious Sciences later regarded as a mujaddid, c. 1105 The Alchemy or renovator of the law, whose of Happiness interpretations were treated with particular respect. Al-Ghazali condemned loyalty to leaders who claimed their own secret revelation of the Sharia, denouncing this as

58 NWOASYALREDFTOFOULATND THE DOMESDAY BOOK (1086) IN CONTEXT F ollowing his invasion of William died in 1087, before he put England in 1066, William the Domesday census to use, but FOCUS the Conqueror, now King it was of huge value. Virtually all Land tenure William I, made frequent visits of England had been mapped to his home duchy of Normandy, administratively and lordship and BEFORE leaving writs (written instructions) land-holding were now inseparable, 1066 William of Normandy in his absence. However, the reflecting the new political structure. conquers England. wholesale change of landownership that had followed the conquest had The king’s land 1069–1070 In the “Harrying of not been well documented, risking Before the Norman Conquest, the North,” William puts down legal and administrative chaos. English property law had presumed a revolt and large-scale land William desired a fuller account that the land had no single owner, confiscations follow. of his new royal demesne (landed such as a king. So individuals had property) in England and—being in been able to own a parcel of land AFTER urgent need of money—he needed 1166 Henry II instructs his to ascertain the total yield of rents. tenants-in-chief to compile the Cartae Baronum, a new list of Compiling Domesday This most powerful king sent lands held by current tenants- In December 1085, the king sent his justices through every in-chief and their subtenants. out commissioners to establish who shire … of England, and owned each estate and each one’s 1334 Tenants-in-chief of productive value (even down to the caused an inquiry to be made the Welsh Marches claim number of ducks on the land). In by sworn inquest how many that the Marches are not each area, a sworn jury of local hides … there were in each subject to English tax landowners and villagers reported village, and what livestock. because the Domesday Book to the commissioners. The findings describes them as “in Wales.” were then gathered into summaries Henry of Huntingdon and returned to Westminster 1977 Ancient Demesne Courts Palace. There they were bound English historian that adjudicated on the basis together in 1086 into the first (c. 1088–c. 1157) of royal land-holdings in the draft of what we now know as the Domesday Book are abolished, Domesday Book. (The book was except as ceremonial bodies. as binding as the Christian Day of Judgment, or “Doomsday.”)

LAW IN THE MIDDLE AGES 59 See also: The Lex Aquilia 34 ■ Gratian’s Decretum 60–63 ■ Magna Carta 66–71 ■ The Venetian Patent Statute 82–85 ■ The Treaty of Tordesillas 86–87 ■ The Statute of Anne 106–107 William of Normandy conquers England and The Norman Conquest confiscates land from the Anglo-Saxon aristocracy. William had become Duke He keeps one-sixth of the land for himself and of Normandy in 1035, aged distributes the rest to noble tenants-in-chief, just 8 years. In 1066, he who own land in return for services to him. crossed the English Channel to claim the crown, which he The Domesday Book commissioners are sent out to believed the Anglo-Saxon King compile lists of the nobles’ estates and their values. Edward the Confessor had promised to him. He defeated The results of the Domesday survey provide a legal Edward’s successor, King basis for land-holding across the whole country. Harold, at the Battle of Hastings, earning the name absolutely. Furthermore, an some (known as villeins) who were of William the Conqueror. individual could have acquired tied to their land and were not private property by occupying land allowed to leave it. William brought an army with no recorded owner. William’s of around 7,000 knights and new form of land-holding swept Domesday and the law men-at-arms. After defeating away these traditional rights. The Domesday Book, with Harold, he needed to control unrivaled levels of detail on land- the English population of Noble tenants-in-chief were holders, was used in legal cases more than 2 million people, now enfeoffed (given a fief, or land involving title, paving the way for to quash a series of revolts, with its peasants and the income precedents of title to become a and to ward off the threat of it provided) by the king on certain cornerstone of English property invasion by the Danes. So conditions—principally military law. Information such as the he rewarded his Norman service or rent. The new tenants-in- number of “hides” (the land needed followers with English land, chief received something like legal to support one household) on each much of it taken from Anglo- title to their land for the first time; estate was used as late as 1193. Saxon nobles. By the 1080s, they in turn granted portions of The value of its detail waned over the native land-holding their fiefs to subtenants. time, but the Domesday Book has aristocracy had been stood as a foundational text of the decimated. The Domesday No one save the king now held English legal and political system Book documented that land in their own right and the for 900 years. ■ revolution in land-holding. former free men of the Anglo-Saxon period became tenants, including King Harold is said to have been killed by an arrow in the eye at the Battle of Hastings, shown in this scene from the Bayeux Tapestry.

60 IN CONTEXT RCAENAPNAENCAOCTTUEDBSEATION FOCUS Canon law GRATIAN’S DECRETUM (MID-12th CENTURY) BEFORE 325 Emperor Constantine convenes the first major council of the Christian Church at Nicaea (now Iznik, in Turkey). 380 Thedosius I issues the Edict of Thessalonica, making Christianity the state religion of the Roman Empire. 529 Emperor Justinian publishes his Code, an important source of canon law. 1100 Flemish priest Alger of Liège publishes the Liber de misericordia et justitia (Book of Mercy and Justice), from which Gratian borrows texts. AFTER 1234 The Liber extra is published under the authority of Pope Gregory IX. 1917 The publication of a new code of canon law finally replaces Gratian’s Decretum. A s the Christian Church grew in strength during its first centuries, and particularly after it emerged under Emperor Constantine from the shadows of persecution in 313 ce, it needed a law to govern it. The relatively small number of rules that could be derived from the New Testament had to be supplemented with a more detailed framework. This was required to govern both the behavior of the Church hierarchy itself and those areas such as

LAW IN THE MIDDLE AGES 61 See also: The Ten Commandments and Mosaic law 20–23 ■ Aristotle and natural law 32–33 ■ The Lex Aquilia 34 ■ Ulpian the Jurist 36–37 ■ The origins of canon law 42–47 ■ Thomas Aquinas 72–73 marriage and family life, where the A stained-glass window in Worms the penance should be more severe Church authorities felt they had a Cathedral, Germany, depicts Burchard if he killed without the command greater claim than the civil law. of Worms. His Liber decretorum was of a legitimate ruler. one of the most significant collections The canon law (law relating to of canon law before Gratian’s. Despite the production of the Christian Church) that developed such compilations, by the early in the centuries after Constantine The inconsistency of canon 12th century, there was still no had a piecemeal nature. The law mirrored that of Roman civil law, systematic treatise that attempted decisions of a series of Christian alongside which it had developed, to make coherent sense of the councils, such as the First Council where successive pieces of imperial broad body of canon law in the way of Nicaea in 325ce—many of them legislation sat alongside a mass that Justinian’s Corpus juris civilis concerned with Church discipline, of juristic writing to produce a (Body of the Civil Law) had done for such as forbidding priests to live legal framework that was both Roman civil law (see box, p.62). The with women to whom they were not incomplete and contradictory. Concordia discordantium canonum related—were supplemented by ad (Harmony of Discordant Councils) hoc decretals (decrees concerning Compiling canon law by the Italian legal scholar Gratian points of canon law). Attempts were made early on to filled this gap. It consisted of three bring some form of order to this parts dealing with questions of A lack of consistency chaos, beginning with the Church administration, ecclesiastical Only in the very particular case of Apostolic Canons, assembled in organization, and the sacraments, monastic rules—such as those the early 6th century by Dionysius and it cited authorities as diverse as of St. Benedict, written in the Exiguus, a scholar who worked for Church councils, papal decretals, early 6th century—was there Pope John I in Rome. This brought Roman imperial rescripts (written a consistent set of regulations together canons of a number of replies from emperors to legal governing all aspects of religious Church councils on issues such as queries), and the works of life. And there was very little in the the date on which Easter ought to 7th-century Spanish encyclopedist way of legal reasoning to justify be celebrated. Isidore of Seville. those regulations that had been clearly decreed. The 9th and 10th centuries Little is known about Gratian, brought a new sense of urgency the author of the collection later to attempts to gather together the known as the Decretum Gratiani vast body of canon law. This era (The Decretum of Gratian). He of the jus antiquum (“old law”) saw may have been a Benedictine the compilation of collections such monk or possibly a bishop, but ❯❯ as the Libri duo de synodalibus causis et disciplinis ecclesiasticis Justice is the firm and (Two Books Concerning Synodical continuous desire to Causes and Church Discipline) by render to everyone that German abbot Regino of Prüm in 906 and the Liber decretorum(Book which is his due. of Decretals) by German bishop Justinian Burchard of Worms, which was compiled around 1020. The Liber Roman emperor (c. 482–565) decretorum in particular gathered together previous ecclesiastical decisions about penance, such as whether a man needed to commit penance for killing on the battlefield and whether

62 GRATIAN’S DECRETUM Roman civil law By the 4th century ce, Roman Justinian proposes a systematic framework of Roman civil law. civil law consisted of multiple ad hoc imperial decrees and Gratian builds on the Justinian Code, proposing a extensive juristic writings. similar systematic framework of canon law that included the Some attempts had been made to bring order to the following key principles. morass of imperial legal decrees—most notably in Secure The freedom The right not 438 ce, in the Code of property to choose to be tried Theodosius. rights for twice for the new owners. whether or not same crime. A more successful reform to marry. was achieved by Emperor Justinian, who established a the only reliable information about on Justinian’s Digest, using it to legal commission tasked with him relates to a legal case in Venice illustrate issues such as the effect finding all valid laws and in 1143, in which he was cited as of adoption on the prohibited weeding out those which an authority by the papal legate (a degrees of marriage and divorce were defunct, defective, or clerical representative of the Pope). within a family. In other areas, such contradictory. In 529, he It seems likely that Gratian was as rules on the behavior of clergy published his Code, valid associated with the prestigious and the payment of tithes—which throughout the Eastern legal school in Bologna. Despite did not have precedents in Roman Roman Empire. Four years only scant information about his law—Gratian had to derive rules later, he authorized the life, the impact of the Decretum from the Bible, Church councils, publication of the Digest, a itself was enough to secure Gratian and papal decretals. summary collection of the the title of “Father of Canon Law.” writings of jurists through Intent, double jeopardy, previous centuries. The The Decretum was written and marriage Institutions, a basic handbook in two stages—sometime after In several areas in particular, for law students (also published 1139, and then around 1150. (Some Gratian’s formulation of Church in 533), completed the Corpus scholars argue there are two versions law established rulings that would juris civilis, which was later of the Decretum.) The first part of have far-reaching implications for to prove a very useful source the work is divided into 101 the Church. In the second part for Gratian. subsections, the second deals with of the Decretum, for example, he 36 particular questions, and the devotes a chapter to the subject of Justinian was emperor of the third addresses matters related land property rights, which was an Eastern Roman (Byzantine) Empire to the sacraments. issue of grave importance to the from 527 to 565. He tried, with some Church as a major landowner. The success, to reconquer the lost Gratian adopted a systematic problem was that Church land had western half of the Roman Empire. approach throughout, appealing to often been “alienated”—leased or earlier authorities as models and allowed to be used by a new using reason to resolve problems. owner. The latter, or a third party He used the Corpus juris civilis as who the land was passed onto, an invaluable source of Roman law, and from 1150, he drew in particular

LAW IN THE MIDDLE AGES 63 It is not always bad to freely given and that no one disobey a command, for should be coerced into marriage. when a lord commands what Even so, on the question of whether is contrary to God, then a man, having taken monastic he is not to be obeyed. vows, is subsequently permitted to change his mind and marry, Gratian Gratian finds the matter so difficult that he cites no fewer Decretum, XI 3 than 40 previous authorities and eventually concludes that a simple vow of chastity cannot be broken. might have come into possession The body of canon law Canon law dominated in areas to do of the land through illegitimate Gratian’s Decretum inaugurated with family life, marriage, and sexual means, or their title might be an era of ecclesiastical law, known morality. In this illustration from otherwise defective. Gratian as the jus novum (“new law”), in Gratian’s Decretum, a woman has been addressed this issue. He carried which canon law became condemned to wear a chastity belt. over a precedent from Roman civil regularized and the subject of law that if the acquisition had been intense academic study. As Clement V—that together formed in good faith—even if technically early as the 1140s, glossators— the Corpus juris canonici (Body not legal—then the new owner’s writers who provide glossaries or of Canon Law). This was the right to the property could not be commentaries on other authors’ main source of canon law until challenged by the previous owner works—had begun to provide the Roman Catholic Church’s (in this case, the Church) after a supplements to the Decretum, 16th-century Council of Trent, period of 40 years. This represented work that would still be ongoing which clarified Catholic doctrine a 10-year extension to the period a in the 16th century. in the face of Protestant criticism. civil landowner had to claim his Even after this time, the Corpus rights from a new owner. The Decretum was one of six juris canonici remained an works—including the Liber extra important influence in the law of Gratian’s Decretum also helped of the Spanish canon Raymond of the Christian Church until 1917, establish the principle of double Peñafort (approved by Pope Gregory when a revised code of canon law jeopardy, in which a person cannot IX in 1234), the Liber sextus (1298) was promulgated by Pope Benedict be tried twice for the same crime. of Pope Boniface VIII, and the XV. In 1959, Pope John XXIII He took as his starting point a Clementines (1317) of Pope established a papal commission to passage from the Book of Nahum undertake a new revision, and this in the Old Testament that “God No prescription, took effect in 1983, comprising does not judge twice in the same whether civil or canonical, 1,752 canons (rules or principles) matters.” Despite this, in certain divided into seven books. cases, the ecclesiastical courts still shall be valid without permitted both a civil case to be good faith. Although it had never been taken to deprive a cleric of their formally recognized by the Church, position and a separate criminal Decree of the Second Gratian’s Decretum has been an case on the same matter. Lateran Council, 1139 essential legal text in universities for more than 750 years, making it Gratian’s sections on marriage one of the most influential legal helped solidify the notion that works of all time. ■ consent for marriage should be

64 STHPEEATKRUTH THE ASSIZE OF CLARENDON (1166) IN CONTEXT England’s itinerant justices tour the country. Local juries of free men (men who are not legally FOCUS tied to a master or plot of land) inform justices of Trial by jury suspected murderers, rapists, and thieves. BEFORE 1154 Henry II (1133–1189) is Justices determine whether the accused crowned king of England. should be tried by ordeal by water. 1164 The Constitutions of Guilty defendants have their property seized Clarendon give secular courts and a foot amputated. Even innocent defendants power over canon law in many matters, including trial and of ill repute may be exiled. punishment of criminal clergy. H enry II inherited an English Church, justice. In 1163, he received AFTER kingdom in which law and a report that the ecclesiastical, 1170 The Inquest of the order had broken down rather than royal, courts had tried Sheriffs replaces 21 sheriffs during the Anarchy (1135–1153), the more than 100 churchmen for murder (mostly barons, or hereditary civil war between Henry’s mother, since 1154. nobles) with royal appointees Matilda, and his predecessor, King to stop corruption of the courts. Stephen. Henry also had to face the The growing assertiveness of challenge of canon law—a parallel the papacy also threatened Henry’s 1176 The remit of juries and legal system of ecclesiastical, or authority and his courts. Henry punishments are extended by needed to regain control of the law: the Assize of Northampton. 1215 The Fourth Lateran Council forbids clergy from taking part in trials by ordeal. 1353 A statute by Edward III forbids service on both a trial jury and jury of presentment.

LAW IN THE MIDDLE AGES 65 See also: Early legal codes 18–19 ■ Trial by ordeal and combat 52–53 ■ Gratian’s Decretum 60–63 ■ Magna Carta 66–71 ■ The trial of Charles I 96–97 ■ The Glorious Revolution and the English Bill of Rights 102–103 Trial by cold water, shown here in the 9th-century Codex Lambacensis, a manuscript of church rules, involved dropping the accused into a pond, lake, or river. If he sank, he was innocent. a first step was to restrict the The Assize of Clarendon had also method of determining guilt. Juries Church courts’ ability to punish the replaced the previous practice of were now asked to judge whether clergy. Henry then held a council at compurgation, by which the accused defendants were innocent or guilty. Clarendon Palace, Wiltshire, in 1166. could prove innocence by producing This new role created a conflict The resulting series of laws, called a sufficient number of witnesses to of interest with the role of a jury of the Assize of Clarendon, ordered swear to it. Trial by cold water now presentment, so in 1353, a statute “justices in eyre” (justices traveling became the prime legal process of of Edward III forbade a person from periodic circuits) to take royal justice proof in criminal trials; it had earlier sitting on both forms of jury. out of London to the provinces. been used only on lower classes. Those found guilty by the ordeal As well as the grand assizes Visits by justices in eyre had faced a fine, confiscation of property, (courts) set up by the Assize of begun under Henry I (r. 1100–1135) and the amputation of a foot; even Clarendon, petty assizes had also but had long since fallen into disuse. those found innocent could be evolved to deal with special cases The Assize of Clarendon added a exiled if they were of ill repute. such as land disputes—they had new condition: 12 free men from Large numbers of accused simply juries of 12 men. Other measures each “hundred” (land large enough fled rather than face the ordeal, but followed, such as Clause 39 of the to support 100 households) or four their property could still be seized. 1215 Magna Carta, which forbade from each “vill” (part of a hundred the seizure of a free man’s land and roughly equivalent to a village) The Assize of Northampton in without judgment by his peers. were to sit on a jury of presentment. 1176 added arson and forgery to offenses to be dealt with by justices The use of juries, begun by the The role of jurors in eyre. Penalties became harsher, Assize of Clarendon, gradually In a jury of presentment, the jurors with the guilty suffering amputation extended until trial by jury became had to report, under oath, to the of a hand as well as a foot. established and a hallmark of the justices on local suspects for the British legal tradition. Henry’s most serious crimes—murder, rape, Evolution of the jury reforms also laid the basis for and theft. Jurors did not have to When the Fourth Lateran Council common law (law applied to all). ■ decide on a suspect’s guilt: if the (a Roman Catholic synod in Rome) person had been apprehended in 1215 forbade clerics from taking The lord king wills that committing the crime, his or her part in trials by ordeal, such trials those who … be absolved guilt could be presumed. were discounted as a practical by the law, if they have been of the worst repute … shall abjure the king’s lands. The Assize of Clarendon

TO NONE WILL WE DENY JUSTICEOR DELAY RIGHT OR MAGNA CARTA (1215)



68 MAGNA CARTA IN CONTEXT English kings The financial from Henry I onward demands of wars FOCUS establish centralized with France lead Constitutional government royal courts, which reduce to royal abuses BEFORE baronial power. of power. 1100 The Coronation Charter of Henry I, king of England, pledges The leaders of the baronial revolt force King John to to end all unjust royal practices. sign a charter of rights, known as Magna Carta. 1166 Henry II’s Assize of The Crown The rights of Clarendon extends the Crown’s concedes that its powers individuals against power against baronial courts. arbitrary punishment are not absolute and 1214 King John finally loses need to have a by the Crown control of Normandy after the basis in law. are established. Battle of Bouvines in Flanders. From the 1190s, the revenue that a A series of disastrous military AFTER king could raise from feudal dues expeditions in France ended with 1216 Magna Carta is reissued and his own estates was wholly the loss of Normandy in 1204 and on the accession of Henry III. inadequate to fund the wars left John critically short of money. pursued to defend the land England To finance a new army, he turned 1297 Edward I confirms held in France. The king extorted to wholesale abuse of feudal dues. Magna Carta as statute law. increasing funds from his barons, Scutage (a cash levy in lieu of who became ever more embittered. military service) was increased and 1969 An act is passed that raised even when no service was repeals most parts of Magna Legal abuses under John required. The royal courts of law Carta still in force, leaving only England’s justice system was in grew more powerful and were four chapters in operation. need of reform. The legal processes used to levy fines on questionable that had suited earlier kings were grounds. The dues exacted when T he monarchs of medieval under severe strain by the 12th a baron inherited his position and England had a problem. The century. Henry II’s reforms provided land rose enormously. The sums feudal system instigated the nucleus of a central court system extorted from barons to avoid the from 1066 by William I was breaking and the beginnings of a codification “king’s displeasure” also escalated. down. Under this system, barons of common law (see box, p.70). Both contributed to an increase in (nobles) were the superior “vassals” The reforms, however, limited the the royal revenues to £145,000 in who swore allegiance to the Crown, power of the barons’ local courts, 1211 (around 10 times more than provided fighting men, and paid and the concessions offered by had been typical in the 1190s). dues to the king in return for his the reforms could be abused or protection and land (called fiefs or withdrawn at will by a less Another war in France from 1214 fiefdoms). Barons, too, had vassals— enlightened king—notably John, to 1215 squandered the money and often trusted knights—who swore who assumed the throne in 1199. eroded any residual goodwill among fealty (allegiance) to their lord and the barons. There was a contractual sometimes oversaw their lands. Below them were peasants—tenant farmers who might be free men but were mostly “villeins,” legally tied to the lord. At the system’s base were serfs, who were owned by the lord. Serfs and peasants had no rights.

LAW IN THE MIDDLE AGES 69 See also: The Domesday Book 58–59 ■ The Assize of Clarendon 64–65 ■ The trial of Charles I 96–97 ■ The Glorious Revolution and the English Bill of Rights 102–103 ■ The US Constitution and Bill of Rights 110–117 The English Church shall be almost every royal abuse of power could not be forced to remarry free, and shall have its rights that had occurred during John’s against her will (as wealthy widows undiminished, and its liberties reign. John assented and set his often were to those favored by the unimpaired. [ … ] This freedom seal on the document. king). Chapter 12, which forbade we shall observe ourselves … the raising of scutage except by The Great Charter “common counsel of our kingdom,” Magna Carta, In 1218, the new document challenged the king but had little Chapter 1 was named Magna Carta (Latin immediate force, as John chose for “Great Charter”). Today, it is the members of his royal council. element to medieval English revered as a foundation document Chapter 16 summarized the kingship; the monarch’s authority for modern democracy and the rule nobility’s major grievance against was considered a contract with his of law, but when it was issued, it was their monarch by stating that no people. His feudal vassals had a a conservative contract, primarily one should be compelled to do right to renounce their fealty if the intended to protect the barons’ legal greater service “for a knight’s fee” king broke his side of the bargain. rights against royal encroachment. (scutage) than was legally due. A dispute with Pope Innocent The charter’s 63 chapters begin Other chapters had more III worsened the situation. When by confirming (at Archbishop profound consequences. Chapter John rejected the Pope’s candidate, Langton’s insistence) that the 18 laid down that certain assizes Stephen Langton, for Archbishop English Church should be free from should be held by a traveling of Canterbury, the Pope issued royal interference and should have committee of two justices and four an interdict that banned church its rights “undiminished.” Much of knights in each county at least ❯❯ services in England. In 1209, he the rest of the charter dealt with excommunicated John. The ban on baronial grievances. Chapter 2 laid King John signs Magna Carta religious services was deeply felt and down that heirs of an earl or baron at Runnymede—a site used for further tested the barons’ loyalty. should pay the Crown no more than assemblies since ancient times. In £100 to take up their inheritance. reality, the king used the Great Seal Chapter 18 stipulated that a widow to mark his assent to the document. The barons’ revolt John finally capitulated to the Pope, but in 1215, he faced a serious baronial uprising. The rebels gathered in the north and marched toward London. Under pressure from Archbishop Langton to avoid a bloody confrontation, John agreed to negotiations. He met the barons on June 15 in a field beside the Thames at Runnymede in Surrey. They presented the Articles of the Barons, which sought to prevent

70 MAGNA CARTA four times a year, providing speedier supported by a French army rose up Magna Carta was issued in Latin— access to justice for all. Previously, the against the king. When John died the legal language of the day. About only guaranteed legal sittings had in October 1216, his heir, Henry III, 17 copies survive, including ones at been those of the court established was just 9 years old and in no Salisbury and Lincoln cathedrals in 1178 at Westminster. Chapter 39 position to challenge the barons and the Bodleian Library in Oxford. was even more significant, as it as John had. Most of the warring included rights later enshrined in barons quietly defected back to the et consuetudinibus Angliae (On the Habeas Corpus Act of 1679. It government side, and by 1217, the Laws and Customs of England), stated that no free man could be the rebellion had collapsed. attributed to cleric and jurist Henry arrested, imprisoned, dispossessed, de Bracton, developed the subject exiled, outlawed, or in any way The charter was first reissued in in around 1235. This treatise also victimized except by the “lawful 1216, when Henry III assumed the introduced the idea of mens rea judgment of his peers” or by the law throne and again in 1218, when it (criminal intent) and formulated of the land. The following chapter was named Magna Carta. The 1225 a theory of kingship inspired by affirmed that the right to justice reissue expanded the coverage of Magna Carta, stating that a king could not be bought, refused, or the charter’s protection from “all was a rightful monarch only if he delayed. By accepting Chapters 39 free men” to “all men.” It did not obtained and exercised power in a and 40, the king swore for the first explicitly offer women the same lawful manner. Under Edward III, time to be bound by the law. protection, although some have laws known as the Six Statutes since argued that, at this time, expanded the protection Magna Early survival “men” could mean “people.” Carta offered; they included explicit The barons knew that John would statements of the right not to have try to renege on the charter. As a The 1225 reissue was regarded goods or chattels seized (1331) and precaution, Chapter 61 stated that as definitive and incorporated into that of all men to have access to due should the king break the agreement, law. It marked the transition of the process of law if accused (1368). a committee of 25 barons could rights it included from common law hold him to account. John could (laws developed on the basis of Reinforced by Parliament not accept such an assault on his previous rulings) to statute law The 13th century marked the birth authority, and in August, he secured passed by a legislature. Edward I of parliamentary democracy. Over a papal bull (a public decree from confirmed this with his 1297 time, the king’s right to appoint the Pope) allowing him to revoke the reissue. The 13th century also saw whom he wished to his royal charter. This prompted the First legal consolidation in the common council of administrators and Barons’ War, as a group of barons law. After Ranulf de Glanvill advisers was eroded. A further (see box, below) had paved the baronial revolt against Henry III led way, another treatise, De legibus Ranulf de Glanvill and the common law One of the earliest authoritative Westminster to hear suits—the texts on common law was origins of the Court of the King’s the Tractatus de legibus et Bench. Their decisions, the precedents that such decisions consuetudinibus regni Angliae set, and the reference to earlier (Treatise on the Laws and customary law marked the Customs of England), attributed emergence of English common to Ranulf de Glanvill and written law. The treatise, which the between 1187 and 1189. Born king had commissioned to help around 1112, Glanvill was the establish peace in turbulent Justiciar of England—Henry II’s times, clearly defined the legal chief minister from 1180 to 1189. processes of the day. An independent judiciary Dismissed and imprisoned by had begun to emerge. In 1178, Richard I in 1189, Glanvill died an ordinance established that on a crusade in Palestine in 1190. five judges should sit in

LAW IN THE MIDDLE AGES 71 By our spontaneous and effective shield for parliamentary The democratic aspiration good will, we have given rights against the power of the is no mere recent phase and conceded … to all our Stuart kings during the English Civil in human history. Wars that resulted in the execution It was written kingdom, these below of Charles I, the exile of Charles II, in Magna Carta. written liberties. and Cromwell’s rule. Franklin D. Roosevelt Henry III A broad, lasting influence 32nd US president (1933–1945) 1225 reissue of Magna Carta In the late 18th century, Magna Carta’s defense against royal of the City of London; and Chapters to the Provisions of Oxford in 1258. tyranny resonated with the 39 and 40 on the right to trial These placed the government in the American colonists’ struggle for according to the law and the hands of a committee of 15 barons independence from British rule. The forbidding of arbitrary seizures by and a parliament (made up largely wording of the US Constitution in the Crown. For these two chapters, of nobles) summoned three times 1789 and the later Bill of Rights was Magna Carta is still perceived as the a year. The system soon collapsed, influenced by the limitations on cornerstone of British legal rights but a revolt in 1264 led by Simon de the arbitrary power of a ruler that and a turning point in constitutional Montfort (the Second Barons’ War), Magna Carta had established government and human rights. ■ led to the calling in 1265 of the first more than 500 years earlier. parliament to include representatives not just of the wealthy elite, but In Britain, by the 19th century, of all the people. It included two much of Magna Carta had become burgesses (representatives) from obsolete. From 1828 onward, most each large town and two knights of its provisions were removed from from each shire. the statute book. Only four of its chapters are still in force today: the By the 14th century, this body was first, on the liberties of the English exerting its rights under Chapter 12 Church; Chapter 13 on the privileges of Magna Carta, interpreting it to mean that the king could not raise any tax without first seeking Parliament’s consent. The charter’s influence waned during the 15th century, as the Tudor monarchy strengthened. In the 17th century, however, it became a highly King John’s assent to Magna Carta was marked in 1957 by this memorial at Runnymede on land leased by the American Bar Association (ABA). Its president William Hubbard declared the charter “an enduring worldwide symbol of liberty and the rule of law.”

72 EOCVROEDMRAMYINOLENADWGTOOIOSDTHE THOMAS AQUINAS (c.1225–1274) IN CONTEXT People have the faculty People discover natural of reason and seek to laws embedded in FOCUS live in a virtuous way. nature and through Natural law divine commands. BEFORE Immutable and universal, Natural law takes 54–51 bce Cicero’s De natural law enables precedence over man- Republica discusses ideas of people to live in a good made laws, which are natural law and natural right. and moral way. subject to change 388–395ce St. Augustine tries and can be unjust. to reconcile Christian teaching and natural law in De libero A s legal theory developed idea maintained that to be just, arbitrio (On Free Will). from antiquity onward, human laws—those of a nation- a series of philosophical state, for example—must conform c.1140–1150 Gratian’s questions particularly troubled to the principles of natural law. Decretum describes natural scholars. Central among these were law as “the law common to three conundrums: from where did Reason and virtue all nations.” law arise, could laws be applied Natural law theory originated with universally, and were there moral Greek philosophers such as Aristotle AFTER grounds on which laws could be in the 4th century bce, who in his 1323 Thomas Aquinas is disobeyed? Endeavoring to solve Politics described law as reason and canonized by Pope John XXII. these problems, the theory of part of mankind’s rational attempt to natural law held that there was an organize society well. The Roman 1689 English philosopher overarching law whose principles statesman and lawyer Cicero in the John Locke’s Two Treatises were embedded in nature itself— 1st century bce argued that the best on Government argues that and, according to philosopher and way to achieve happiness was natural law existed in our theologian Thomas Aquinas, were through living a life of virtue original state of nature before dictated by divine command. The and that natural law, framed in the rise of governments. 1948 The Universal Declaration of Human Rights sets out fundamental rights that are common to all nations.

LAW IN THE MIDDLE AGES 73 See also: The Ten Commandments and Mosaic law 20–23 ■ Aristotle and natural law 32–33 ■ The origins of canon law 42–47 ■ Gratian’s Decretum 60–63 Reason in man is can, unlike natural law, easily be Thomas Aquinas rather like God in modified. Even this, according to Aquinas, should conform to the The Catholic Church’s the world. dictates of natural law—and if it most influential medieval Thomas Aquinas does not, it may be deemed unjust. theologian, Aquinas was born in Fossanova between Naples Summa Theologica, 1265–1274 Natural law and justice and Rome, in c. 1225, to a Aquinas believed that both natural family of minor nobility. accordance with nature, made this law and human law aimed at the Against their wishes, he possible. By the early Middle Ages, common good, but sometimes became a Dominican friar Christian writers such as St. this produced surprising—and to at age 20. Studying in Paris Augustine had developed this idea modern eyes unfounded—results. under theologian Albertus further to conclude that laws He deemed slavery, for example, to Magnus, he rapidly rose contrary to natural law were unjust be in accordance with natural law, to prominence and was and might not need to be obeyed. supporting a divinely ordained social appointed regent master hierarchy. However, he thought it of theology there in 1265. In the 13th century, these legitimate to conform to the spirit strands were gathered together rather than the letter of natural law In 1265, Aquinas was and refined by Aquinas, whose if this prevented a greater evil. summoned to serve as papal Summa Theologica (Theological theologian, establishing a Treatise) included a key section Aquinas’s ideas of natural law Dominican training school on natural law. He distinguished remained influential after his death, at Santa Sabina in Rome, between four types of law. Eternal providing defenses of the right to where he began to compose law transcends everything and overthrow tyrants and for theories the Summa Theologica as touches upon God’s divine plan and of a “just war.” They flowered anew a manual for students. He order for the universe, while divine in the 20th century with the notion was called back to Paris in law concerns creation and the path of universal norms contained in the 1268, but in 1272, he returned to salvation. Natural law is the link Universal Declaration of Human to Italy to found his own between mankind and God, made Rights. And they continue into school in Naples. There he possible by humanity’s ability the 21st century with appeals had an ecstatic vision, which to reason and perceive good. to “natural justice” as a means to caused him to cease writing, oppose unjust government laws. ■ leaving the Summa unfinished At the bottom of Aquinas’s at the time of his death in 1274. hierarchy of laws is human law, which is created according to particular circumstances and In his Summa Theologica, a page of Key work which is shown here in a 13th-century decorated manuscript, Thomas 1265–1274 Summa Theologica Aquinas cites Christian, Muslim, (Theological Treatise) Hebrew, and pagan sources.

74 IN CONTEXT CTHOEMMPAENRICOHNANT’S FOCUS International THE LEX MERCATORIA commercial law (13th–15th CENTURY) BEFORE c.700 ce Rhodian Sea Law combines various existing laws and customs to form a body of maritime law. c.1010 The Tavole Amalfitane is the first body of maritime law to be recognized throughout much of the Mediterranean. AFTER 1622 English merchant and free trade advocate Gerard de Malynes’ Consuetudo vel Lex Mercatoria is a clear exposition of merchant law. 1940 UNIDROIT is set up, providing an arbitration forum for private commercial cases and beginning a new era for the Lex Mercatoria. T he problem of which law should regulate merchants who trade internationally is as old as commerce itself. Greek, Phoenician, and Roman traders all developed systems of what was essentially private law—not regulated by the state—to resolve disputes and enhance confidence in trading networks that relied on trust. The Romans in particular developed a means to regulate dealings between Roman citizens and those who were not subjects of the empire. This jus gentium (“law of people”) had its origins in the 3rd century bce and became redundant after the collapse of the

LAW IN THE MIDDLE AGES 75 See also: The Lex Rhodia 25 ■ Blackstone’s Commentaries 109 ■ The United Nations and International Court of Justice 212–219 ■ The World Trade Organization 278–283 Merchants from different When disputes arise Merchants agree countries do business between merchants, they to submit themselves with one another. are difficult to resolve because of conflicting to customary commercial law. laws in different countries. The dispute between A Lex Mercatoria court operates merchants is resolved. according to principles agreed to by all participants. empire in the 5th century ce, with where they existed—tended to be Extensive maritime networks its dissolution into a series of slow, bureaucratic, and inflexible. carried much of Europe’s high-value barbarian successor states, each The solution was an early form trade, so it is not surprising that with its own territorial laws. of self-regulation—a customary maritime law emerged as the From the 9th century onward, law that was developed among forerunner of fully developed however, there was economic merchants over several centuries, mercantile laws. As early as the growth in parts of northern Europe, known by the 13th century as the 8th or 9th century, codes such and commerce revived as a result. Lex Mercatoria (Mercantile Law, as Rhodian Sea Law (which was Trading centers such as Dorestad, or Law of Merchants). introduced by the Byzantine in the Netherlands, flourished. To Empire across the Mediterranean) the south, Arab pirates had made Voluntary acceptance had gathered together customary Mediterranean trade dangerous, The Lex Mercatoria was followed maritime rules. The growth of but after their bases were captured voluntarily by the mercantile trading cities in Italy accelerated in the 11th century, maritime community, with no state mandate, the process. Some laws gained trading republics such as Amalfi, although individual nations did also widespread acceptance, such as Pisa, Genoa, and Venice, in Italy, pass laws affecting commerce. the 11th-century Tavole Amalfitane helped boost commerce. (Amalfi Tables), whose 66 articles were observed across the western With the increase in trade came Mediterranean. Italian city-states an increase in disputes. Merchants such as Genoa and Venice had who disputed the quality of the their own maritime trading laws, goods they had received from introduced in 1186 and 1258, foreign traders—or who were trying respectively. The first such code to recover the value of goods lost in northwest Europe was the ❯❯ at sea by a careless carrier—had little recourse to the regular legal The Hanseatic League, whose seal is systems. International treaties shown here, regulated maritime trade between states may have covered throughout much of northern Europe. the treatment of merchants in Established in 1356, it maintained its general, but they did little to help role until the 17th century. in particular cases. Law courts—

76 THE LEX MERCATORIA Rôles d’Oléron (Law of Oleron), Troyes and Lagny, in France—in the And this Law of which was adopted near La 11th–13th centuries increased Merchants … ought in Rochelle, France, in 1160, and the need for regulations to determine regard of commerce to be was later more widely accepted. relations between merchants from different states. This was especially esteemed … as the By the early 13th century, relevant because these fairs often Law of the Twelve Tables. northern European ports such fell under the direct jurisdiction as Hamburg had codes to combat of a local lord and outside the Gerard de Malynes piracy. The Hanseatic League was protection of royal laws. Merchants a trading organization formally needed more confidence that Consuetudo vel Lex Mercatoria established in 1356 as an umbrella their rights (and their goods) (The Custom or Law Merchant), 1622 under whose protection merchants would be protected. from many towns around the Baltic to the Law Merchant.” Cases Sea and further afield could trade. In England, as elsewhere, involving foreign traders were the Lex Mercatoria was recognized heard in the Court of King’s Bench, These codes soon came to as an expedient way of resolving not by the regular crown-appointed have sections dealing with matters disputes and encouraging foreign judiciary, but by expert assessors not purely to do with trading at sea, trade. In 1303, King Edward I or jurors. These were chosen by such as the repayment of debts and issued the Carta Mercatoria the parties themselves and judged the freedom of foreign merchants (Merchant Charter), which granted cases according to the Lex from aubaine, the right of rulers to foreign merchants freedom to trade, Mercatoria rather than the seize the property of foreigners when exempted them from certain laws of England. they died. The rise of great trading regulations, and enjoined officials fairs—such as those in Leipzig “to do speedy justice … according and Frankfurt, in Germany, or Merchant courts Throughout Europe, the merchant courts that emerged to administer the Lex Mercatoria included the Civil Rota in Genoa, the Curia Maris in Pisa, and the Consolat del Mar in Barcelona. Officials with specialist knowledge of trading customs and norms administered these courts, starting with the Sea Consuls of Genoa in 1206. This system assured merchants that disputes could be resolved satisfactorily and swiftly. In turn, this assurance fostered the use A depiction of 14th-century Venice shows it to be a bustling city with boats in the harbor and merchants on the quay. It was one of the first ports to have its own maritime trading laws.

LAW IN THE MIDDLE AGES 77 of financial instruments such as The new Lex Mercatoria for international contracts. promissory notes for payment, Similar to the original Lex which the merchants could now An intensification of trade Mercatoria, its guidelines are trust would be honored or, if and the proliferation of not mandatory and only apply necessary, enforced by the courts. independent legal jurisdictions where parties opt to follow them. fueled by 20th-century The rise of other international As voluntary bodies, the decolonization brought a organizations such as the United merchant courts had more in growing awareness of the Nations has led to a parallel common with modern arbitration need to ensure international growth in mechanisms to resolve rather than formal judicial courts. commerce was not strangled legal conflicts. These include However, their very flexibility and by legal impediments. UNCITRAL, the UN Commission the lack of uniformity in the rulings on International Trade Law, they made raised troubling issues. In 1940, UNIDROIT, the whose Vienna Convention (1988) They operated under few general International Institute for the seeks to remove legal barriers to legal principles, and even those Unification of Private Law, was world trade by setting in place principles that seemed to be set up to harmonize private mutually accepted rules on, for universal, such as that of “earnest” commercial law and establish example, breach of contract. (a part-payment made to seal a generally agreed-on principles contract), were subject to variance. jurist William Blackstone’s also concerned that foreign Commentaries on the Laws of Because merchants could merchants were able to gain undue England reinforced the view that petition for cases to be considered advantage by appealing to judgment merchant practices were covered under whichever legal system they under the Lex Mercatoria. The by the law of the land and that the chose, this could lead to further English Parliament sought to Lex Mercatoria no longer had force. disputes between parties. There subsume it under the common law. were cases where Antwerp As early as 1353, King Edward III State law takes over merchants trading with merchants established staple ports in England, Across Europe, as national in London refused to submit to the Wales, and Ireland where specific judiciaries and legislatures grew law of London, while the authorities goods (or “staples”) could be traded. stronger, they no longer tolerated in Ypres insisted that any merchants These ports had their own courts, the existence of competing types trading there did so under the law of administered by the Crown, to rule of law within their jurisdictions. Ypres. National governments were on commercial disputes. Even so, Commercial law codes enacted a court chaired by Bishop Robert by individual states took the place Stillington in 1473 could still assert of the Lex Mercatoria—among that foreign merchants should be them, the French Code de Commerce judged according to the Lex in 1807 and the German Allgemeines Mercatoria. That position gradually Deutsches Handelsgesetzbuch in began to shift in the 17th century, 1861. And yet, although the Lex when champions of common law Mercatoria seemed moribund, it such as jurist Edward Coke fought was not entirely dead. for its supremacy. During the 20th century, when By the 1760s, Lord Chief Justice the volume of international trade William Murray, Earl of Mansfield, soared, there was a new wave of declared that there was no such private commercial law for dealings separate body of law as the Lex between private individuals that Mercatoria. The 1809 edition of do not involve the state (see box, above). Born over a millennium Spain’s Book of the Consulate of the ago, as Europe rebuilt itself after Sea is a collection of maritime customs the fall of Rome, the Lex Mercatoria that contributed to the development of still remains relevant in the field of the Lex Mercatoria in the Middle Ages. international trade. ■ This edition was printed in 1523.

EENMLPIIGRHET 1470–1800

EANNMDENT

80 INTRODUCTION The Venetian Patent The English and Astronomer Galileo During the English Statute establishes Welsh Poor Law Act Galilei is tried for Civil War, Parliament the first codified provides support for heresy by the Catholic establishes the High patent system in the “settled” poor Church for saying that through parishes and Earth is not the static Court of Justice to the world. center of the universe. try King Charles I local taxation. for treason. 1474 1601 1633 1649 1494 1625 1648 17TH CENTURY After Columbus returns In De Jure Belli ac Pacis The Peace of Westphalia Slave codes in from the New World, Spain (On the Law of War and establishes the principle the Caribbean and of national sovereignty and Portugal sign the Peace), Hugo Grotius North America Treaty of Tordesillas, champions diplomacy and reinforces the classify slaves as dividing ownership of in international law. principle of diplomatic the property of the world between them. means to secure peace. their owners. A t the end of the 15th Road. After Christopher Columbus establish an international rule of century, enormous cultural stumbled across the Americas on law. In 1625, Dutch scholar Hugo and political changes his voyages of discovery, the two Grotius wrote the treatise On started to take effect in Europe, Iberian states negotiated a deal, the Law of War and Peace, which ushering in the age known as the the Treaty of Tordesillas, in which championed human reasoning and Renaissance. Nation-states began they effectively divided the world cooperation in international affairs. to assert their independence and into two hemispheres, awarding This was then played out in 1648 found prosperity through trade Spain the lands to the west and in the Peace of Westphalia, which and empire building. The Catholic Portugal those to the east. These brought an end to the Thirty Years’ Church’s authority was challenged claims were indicative of the War and established a precedent as these changes shifted the prevalent attitude that the world for diplomatic negotiations to emphasis from religion to natural was there to be “discovered”—and protect national sovereignty. laws inherent in humans. conquered and exploited—by the A century later, the basis for truly new European trading nations. The international law was laid by Swiss One of the major mercantile Protestant Reformation of the 16th diplomat Emmerich de Vattel in powers to emerge was the Republic century was a further challenge to The Law of Nations. of Venice, which introduced the authority of the Church. commercial laws, such as the The Americas and parts of Patent Statute, to protect the International order Africa and Asia soon became interests of its traders. Spain and Trading and territorial disputes led colonies of European empires, Portugal were the most ambitious to battles between the countries providing seemingly endless powers, seeking routes across the vying for dominance, and in the resources. But it was not only Atlantic to Asian markets as an 17th century, steps were taken to goods that were being traded. alternative to the overland Silk To provide labor in the colonies

EMPIRE AND ENLIGHTENMENT 81 In the “Glorious The principle of William Blackstone’s In France, the Revolution,” William of authors’ copyright Commentaries on the Declaration of the Rights Orange and his wife, is enshrined in UK Laws of England lays out of Man and of the Citizen Mary, accept the English English common law sets down the principle throne and agree to a law in the Statute in a comprehensive and of Anne. that all people are Bill of Rights. accessible form. equal under the law. 1688–1689 1710 1765–1769 1789 1692 1758 1787 1791 More than 200 people are In The Law of Nations, Delegates meet in Ten amendments, accused of witchcraft Emmerich de Vattel lays Philadelphia to frame collectively known as the and 19 condemned to death the Constitution of Bill of Rights, are added on spurious evidence at the the foundations for the United States, countries to ratified by all states to the US Constitution. Salem witch trials in Massachusetts. cooperate under by 1790. international law. of the Americas, slaves were promoted rational thought over liberty and rights of its citizens. transported from Africa in their religious faith, and progress, liberty, This cause was readily taken hundreds of thousands, a practice and tolerance over the old political up elsewhere, including in the given legal justification in the West order’s deference to Church and American colonies, which were Indian and American slave codes, monarchy, instead advocating growing resentful of their British which treated slaves as “chattel”— constitutional government to rulers and sought independence the property of their owners. protect the rights of citizens. under a more democratic and fairer government. Reason above faith The first signs of this movement Europe’s new prosperity fostered appeared during the English Civil When America declared its intellectual and scientific inquiry, War (1642–1651), with the trial and independence in 1776, it asserted leading, in the late 17th and 18th execution in 1649 of King Charles I the rights of all men to life, liberty, centuries, to the Enlightenment, and the subsequent establishment and the pursuit of happiness. This or “Age of Reason.” The Catholic of the Commonwealth. In 1689, the establishment of the concept of Church still wielded considerable introduction of a Bill of Rights as rights as central to the code of law power, which it exercised in trying the English Parliament’s condition was then embodied in the 1787 to quash “heretics” such as Galileo for accepting the rule of King Constitution of the United States of Galilei for their scientific theories. William and Queen Mary then America. France similarly overthrew Its authority, however, was severely confirmed the power of the law over its oppressive rulers in 1789, to undermined, as was the notion of the supremacy of the monarchy. install a government by the people the divine right of kings and a and for the people, with its ideals monarch’s authority over the Inspired by the changes in of liberté, égalité, and fraternité people. Enlightenment theorists the political order, English embodied in the Declaration of the philosopher John Locke argued Rights of Man and of the Citizen. ■ for a government that protects the

82 IN CONTEXT IPFDNOREGROVEITCANENEICOYTUISON FOCUS Patent law THE VENETIAN PATENT STATUTE (1474) BEFORE 500 bce Chefs in Sybaris in Greece are said to have been granted a year’s monopoly on dishes they have invented. 1421 The first known patent on an invention is issued to Filippo Brunelleschi in Florence. 1449 English king Henry VI issues John of Utynam a monopoly on stained glass manufacture. AFTER 1624 The Statute of Monopolies, which allows patents to be granted for noteworthy inventions, becomes law in England. 1790 The US Patent Act gives inventors an exclusive patent for 14 years. T he Venetian Patent Statute of 1474 marks the true beginning of modern patent law (the law protecting new inventions). Established in the Republic of Venice, it was not the first example of patent protection, but it was the first to establish a comprehensive system that applied to all inventions. In the early 15th century, the city-states of Renaissance Italy were thriving, and the different states vied to come up with new ideas in the arts, science, and technology. Inventions, after all, could earn money and status. But if ideas could be copied easily the instant they came off the

EMPIRE AND ENLIGHTENMENT 83 See also: The Lex Mercatoria 74–77 ■ The Statute of Anne 106–107 ■ The Federal Trade Commission 184–185 ■ The WIPO Copyright Treaty 286–287 The dome of Florence’s cathedral was built without a central support. Its innovative design includes an inner and outer shell with interlocking arches to prevent the dome from expanding. a patent can be transferred both during the life of the patent holder and after; and a patent is lost if it is not used within a certain time, or if the invention a patent refers to is proven not to be the first of its kind after all. Each of these criteria underpins modern patent law. drawing board, these benefits River Arno. Unfortunately, in 1427, Ingenious contrivances would be lost—and there would be Brunelleschi’s craft sank on its In colloquial language, the Venetian no incentive for inventors to spend first voyage. The idea of patents statute provided protection for their time and money developing was abandoned for a while in “any new and ingenious device, ideas, let alone sharing them Florence, but guilds of craftsmen not previously made.” It declared with others. and artists wielded considerable confidently that Venice had the power at the time, and members’ “most clever minds, capable of Patents for invention “ownership” of their own ideas devising and inventing all manner As trading networks expanded and innovations was protected by of ingenious contrivances.” It then across Europe and commercial and the private rules of these guilds. asserted that these clever minds political rivalry between Italy’s city- would only exert themselves to states grew, it became clear that The Venetian Patent Statute make things that would benefit the inventors needed to be protected It was in Venice that the idea of city if their ideas were protected. ❯❯ by recognizing their ownership legal patents really emerged. The of an idea. Ideas had to become city first began issuing one-off In Venice … they reward property. Inventors had to be given individual patents, similar to the and cherish every man an exclusive legal claim so that one awarded to Brunelleschi in others might not copy inventions Florence. Then, on March 19, 1474, that brings in any without their permission. And so Venice’s governing Senate issued new art or mystery the idea of patents slowly emerged. the first general patent law. This whereby the people landmark statute established a may be set to work. The first known patent was system that would protect inventors Sir Thomas Smyth issued in Florence in 1421. The by the free registration of patents. recipient was the architect Filippo Discourse on the Common Weal Brunelleschi, famous for designing The Venetian system had most of this Realm of England, 1581 the dome of Florence’s cathedral, of the features associated with although his patent was not for an patents today: an invention must architectural innovation, but for in some way be useful; the term a special barge to carry building of a patent is limited to a fixed materials to the cathedral via the number of years; the right to use

84 THE VENETIAN PATENT STATUTE Monopolies should be banned, and useful inventions should be Monopolies have too much power over the market and damage granted exclusive rights for a limited time. trade, but inventors need some way of protecting their intellectual property. This will motivate clever minds to create more new and ingenious inventions. And so the statute provided that any and as far as India and Central away from the city and settled creator whose invention was turned Asia. When French writer and elsewhere in Europe, they took the into a practical device should have diplomat Phillipe de Commynes idea of patents with them, eager to the sole right over that invention for visited Venice in 1495, he declared protect their products from being up to 10 years. Anyone who made it to be “the most triumphant city copied, which would dilute their an illegal copy would be compelled I have ever seen.” brand and profits. In 1551, for to destroy it and pay a fine of 100 Venice in demand example, a Venetian glassmaker ducats. This would be about $15,000 If the number of patents granted named Theseo Mutio was the in today’s terms, so the statute was is anything to go by, the Venetian recipient of the first patent clearly meant to be taken seriously. statute was a great success. In the awarded in France, for making period 1474–1600, 621 patents were glass “according to the manner With this legislation, Venice awarded, an average of five each of Venice.” Venetian glassware became the first state to develop a year. Another 605 were granted (produced on the island of Murano) continuous and consistent system in the following century. was hugely popular, and Venetian for the protection of inventions. For glassmakers in Antwerp and the first time, there was a proper Venetian products were very Germany were also awarded early legal framework of intellectual much in demand, and as Venetian patents. In 1565, Italian engineer property rights. In other words, merchants and artisans moved Jacopo Aconcio was awarded knowledge could be “owned,” giving the first patent to be granted people an incentive to develop the The Barovier Cup was created as a for innovation in England—for skills and techniques to invent— wedding gift in about 1470 by master machines powered by water confident that if their work was glassworker Angelo Barovier, who first wheels (see box, top right). successful, their right to earn money discovered how to produce the clear from it would be guaranteed. glass that made Murano famous. Exclusive rights In England, the idea of patents This argument is at the heart on inventions was extended to of capitalist thinking. It assumes include exclusive rights to sell that without the potential rewards particular products or skills—in of financial gain, people will not other words, monopolies. As early bother to create or invent. The as the 14th century, licenses called strategy clearly worked in Venice: “letters of protection” had been by the end of the 15th century, granted to foreign craftsmen and the city’s commercial prominence inventors to encourage them to was unmatched in Europe. It had come to England. In 1331, John become a center for technological Kempe, a Flemish weaver, had development and stood at the hub been a beneficiary, and in 1449, of a trading empire stretching across the Mediterranean Sea

EMPIRE AND ENLIGHTENMENT 85 King Henry VI granted a 20-year The first English patent review and redesign some of the monopoly on the making of stained fortifications at Berwick Castle, glass to John of Utynam, who had The first patent granted in on the England–Scotland border. been invited to England from his England was to Venetian native Flanders to make stained engineer Jacopo Aconcio. Just a few months after his glass windows for Eton College. Originally from northern arrival, Aconcio applied for a Italy, Aconcio had moved to patent for a variety of machines Ninety years later, King Henry Strasbourg. There, he was using water wheels and for VIII’s secretary Thomas Cromwell recruited by Sir William Cecil, furnaces for dyers and brewers. granted a 20-year monopoly on who was Queen Elizabeth I’s In his patent application, he growing silk to Venetian silk secretary of state. Aconcio argued that “those who by merchant Antonio Guidotti in an came to England in 1559 to searching have found out things attempt to persuade Venetian silk- bring Venetian engineering useful to the public should have makers to come to England. The expertise to improve English some fruit of their rights and practice of granting monopolies fortifications at a time when labors.” Aconcio’s patent was had became popular with English Elizabeth’s regime was very granted in 1565. monarchs because they could vulnerable. He went on to charge heavily for the privilege. the exclusion lasted only 14 years, Consequently, more and more under control. And yet Elizabeth’s so inventors could be granted a industries came into the realm successor James I continued to issue patent giving them exclusive rights of exclusive rights, including even patents that established monopolies. for 14 years if they were “the true such basics as salt and starch. and first inventor.” Patents could As anger rose, James I promised also be granted for any entirely new By the end of the 16th century, to abolish the three worst monopolies, method of manufacture. Although it the stranglehold of monopolies but Parliament had had enough. In was more than a century before the had become so extreme that they 1621, Coke introduced a Statute of courts developed a coherent way of provoked bitter resentment. In 1601, Monopolies, which became law implementing patent law, the Statute the English Parliament forced 3 years later, in a trail-blazing of Monopolies was a landmark in Queen Elizabeth I to hand over assertion of business interests in England’s evolution from a feudal the power to regulate monopolies opposition to the absolute power to a capitalist economy. And its and eliminate some of the most of an English monarch. provisions—doubtless influenced by restrictive ones. A Committee of the Venetian Patent Statute—have Grievances, led by senior judge The Statute of Monopolies shaped patent laws ever since. ■ and politician Sir Edward Coke, Coke’s Act made all past, present, was set up to bring monopolies and future patents and monopolies The King himself in England null and void. It also should be under no ordered that patents could not be man but under God used by the Crown for farming out the administration of justice and and the Law. criminal law to private individuals Sir Edward Coke and companies—asserting that only Parliament could do this. Institutes of the Lawes of England, 1628–1644 There was one key exception to the voiding of all patents. This section preserved, crucially, the patent on original inventions. But English barrister, judge, and politician Sir Edward Coke’s Statute of Monopolies, which only permitted patents to be granted for truly new inventions, became law in 1624.

86 FTAROBOPOMOULNPEDOALREY THE TREATY OF TORDESILLAS (1494) IN CONTEXT Portugal and Spain both claim to have discovered, and therefore to own, new territories. FOCUS International law To avoid a costly war between these two rival Catholic empires, Pope Alexander VI is asked to arbitrate. BEFORE 2100 bce The Mesopotamian The Treaty of Tordesillas divides the world city-states of Lagash and into Spanish and Portuguese sectors. Umma mark a boundary between them on a stone slab. W hen explorer Christopher No European powers at the time Columbus landed in considered it relevant that all the 387 ce The Peace of Acilisene Lisbon, Portugal, on regions they “discovered” were divides Armenia between the his return from the New World in already long known and inhabited Sassanian Persian and Eastern 1492, he unleashed a centuries-long by Indigenous Peoples. For the Roman (Byzantine) empires. diplomatic fight between Spain new arrivals, “discovery” meant and Portugal, the world’s first great ownership. Portugal, by virtue 1266 The Treaty of Perth colonial powers. Columbus had been of its pioneering voyages—its divides jurisdiction over the sent on his voyage by the joint rulers navigators had already explored the Northern Isles between of Spain, Ferdinand II of Aragon and coasts of West Africa and India— Norway and Scotland. Isabella I of Castile, but it was the assumed for itself a natural right to Portuguese king, John II, who was claim “undiscovered” territories. AFTER first to hear of the historic discovery. Columbus’s announcement to King 1739 By the Treaty of El Pardo, Spain and Britain resolve their dispute about American navigation and trade. 1750 The Treaty of Madrid redraws the boundaries of the Spanish and the Portuguese colonies in South America. 1885 At the Berlin Conference, European leaders divide Africa among themselves.

EMPIRE AND ENLIGHTENMENT 87 See also: The Domesday Book 58–59 ■ The Lex Mercatoria 74–77 ■ The Peace of Westphalia 94–95 ■ Vattel’s The Law of Nations 108 ■ The Treaty of Versailles 192–193 ■ The Helsinki Treaty 242–243 no one had any way of calculating longitude accurately, so it was inevitable that there would be disputes. And while dividing the world in half north–south down the Atlantic, it did not specify whether the line continued around the world to divide the Pacific as well. Christopher Columbus lands in the statement of European self-belief, South America divided West Indies on an island he named issuing a papal bull that divided Despite its huge shortcomings, the San Salvador. Believing they had the entire world, by this time known treaty proved surprisingly effective. reached east Asia, Columbus and his to be round, into two halves. The It left Portugal in control of the route crew dubbed the locals “Indians.” line ran from pole to pole, north around Africa to India until it was to south through the Atlantic supplanted later by the British. John II that he had discovered a Ocean, 100 leagues (about 345 miles/ It also gave Portugal control of New World on behalf of the king’s 550 km) west of the Azores and Brazil, when 6 years later Pedro Spanish rivals was a bombshell. Cape Verde, and crossed through Álvares Cabral landed there while what is now the easternmost tip sailing south through the Atlantic John sent a threatening letter to of Brazil. All land to the west of the en route to India. Some historians King Ferdinand and Queen Isabella, line not already ruled by a Christian maintain that, at the time of claiming that under the 1479 Treaty monarch would henceforth belong Tordesillas, the Portuguese already of Alcáçovas and the 1481 papal to Spain and everything to the east knew of this huge eastward bulge bull (a sacred decree with the force would belong to Portugal. of South America and kept quiet of law), all lands south of the Canary about it. Whatever the truth, its Islands—and therefore all the lands The Pope’s solution inflamed legacy was to give Portugal the discovered by Columbus—belonged tensions, as each country sought to riches of Brazil, while Spain exerted to Portugal. John also announced move the boundary line farther east its influence over the whole of that he would dispatch a fleet to or west. Finally, in 1494, diplomats the rest of South and Central make good the Portuguese claim. from Spain and Portugal met in the America, dominating what is Spanish town of Tordesillas and now called Latin America. ■ The papal bull came up with a deal: the Treaty of Aware of Portugal’s naval might, Tordesillas. This upheld the division This boundary … shall Ferdinand and Isabella appealed to of the world in half, but Portuguese be drawn … at a distance the Pope, Alexander VI, knowing naval prowess meant the boundary they would get a sympathetic was pushed west by 270 leagues. of three hundred and hearing since Alexander was a seventy leagues west of fellow Spaniard. He responded with The treaty’s new line was drawn the Cape Verde Islands. what now seems like a breathtaking at approximately 46°30’W by Treaty of Tordesillas modern calculations. At that time,

88 IN CONTEXT PESAEVLHRELARSLGYOLONPKVOEEORERPNORS FOCUS Social welfare THE POOR LAWS (1535, 1601) BEFORE 1351 The English Parliament’s Statute of Labourers requires that everyone able to work must do so. 1388 The Statute of Cambridge differentiates between “sturdy” and “impotent” beggars. 1494 The Vagabonds and Beggars Act states that “vagabonds, idle, and suspected persons” should be punished. AFTER 1662 The Act of Settlement allows for the exclusion of outsiders from a parish. 1696–1698 In Bristol, the Corporation of the Poor opens England’s first two workhouses. 1834 The Poor Law Amendment Act introduces workhouses run by “unions” of parishes. 1948 The National Assistance Act abolishes the old Poor Law and ensures relief to all over age 16 and “without resource.” T he 1601 English and Welsh Poor Law Act was one of the first attempts in the world to establish a national legal framework to deal with poverty. Building on various laws that had been enacted since the mid-14th century, it established the precedent that there must be laws for tackling the personal and wider economic outcomes of poverty and that the fate of paupers could not be left to chance and charity.

EMPIRE AND ENLIGHTENMENT 89 See also: Aristotle and natural law 32–33 ■ The origins of canon law 42–47 ■ Thomas Aquinas 72–73 ■ The Workers’ Accident Insurance System 164–167 ■ The Universal Declaration of Human Rights 222–229 Beggars and vagabonds Charity and handouts The better-off disrupt society and encourage idleness, should contribute to increase criminality. poor relief for the when landowners and businesses good of society. need workers. A poor law system Poor relief should be organized at a is necessary. parish level, paid for by local taxation, and compel the idle to work. The Act did not establish a person’s In 1388, Parliament countered with emerged. On the one hand, poor legal right to support in the face of the Statute of Cambridge, which laws aimed to support the needy; hardship, but it did confirm that restricted the movement of workers, on the other, they were a cudgel to those who administer laws have a including beggars deemed to be impel the poor into low-wage work. legal obligation to provide support, “sturdy,” in order to keep them paid for through taxation. The idea working cheaply for their overlords. Beggars and vagabonds of central responsibility for the poor In return, the statute imposed on The “sturdy”—those considered fit became the legal root for the state local administrations, known as for work—could not escape labor. welfare systems that grew from the “hundreds,” the responsibility for Under the 1536 Act for Punishment late 19th century in Germany, providing some basic relief for the of Sturdy Vagabonds and Beggars, the UK, and other countries. “impotent poor,” those deemed anyone wandering far from their incapable of working. And so a home parish without a job was A labor shortage two-pronged approach to poor relief considered a “vagabond” and ❯❯ The pressure for poor laws dated back in part to the aftermath of the Black Death of 1348–1350. The plague killed 30–40 percent of people in England, leading to severe labor shortages. In 1351, the English Parliament passed the Statute of Labourers, which aimed to keep all able-bodied people in work and at preplague wage levels. Laborers, however, saw the demand for labor as a way to move where they wanted and earn higher wages. A 1349 manuscript shows the burial of Black Death victims. Sweeping in from Asia, the plague killed more than 20 million people in Europe.

90 THE POOR LAWS Economic pressures in Tudor England rather than nationally through 15,000 local parishes. Each parish Grain prices more Agricultural and Between 1536 and had to levy a poor rate or tax from than tripled between building laborers 1549, the dissolution property owners to raise money to 1490 and 1569, then and skilled craftsmen of monasteries (and of provide for the needy. Two unpaid increased by another saw their wages decline guilds and hospitals run parish “overseers” were elected 73 percent between by about 60 percent by religious orders) ended annually to set the poor rate, collect 1569 and 1609, making over the course of the the traditional sources of it from property owners (fining bread more expensive. 16th century. charity and poor relief. those who did not pay), and then dispense money or food to those subject to harsh penalties, such as provide a comprehensive framework who needed it—or compel them to whipping, the severing of an ear, for the legal provision of the poor. work. The law also placed a legal and eventual execution. The law was primarily aimed at obligation on parents and children helping the “settled” poor—those to look after each other. Elderly Further legislation in the 16th who found themselves out of work parents, for example, should be century added to the severity of through no fault of their own— looked after by their children. punishment and forced vagabonds and punishing beggars and to take the first job on offer, however vagabonds. It bought together all The law crystallized the idea dreadful. Disabled beggars who the previous poor law legislation that the whole of society suffers refused to do work in their own into a single act. if the poor suffer. It became the homes were sent for punishment norm to levy a universal tax to to a “house of correction.” Although the law applied to provide money to support the poor the whole of the Tudor kingdom, and vulnerable. The better-off no Leaning on the parish its provisions were applied locally longer supported the poor out of During the Tudor period (1485–1603), charity alone. Instead, it was a legal the population of England increased obligation for everyone who could dramatically, which, together with afford to pay the tax to do so. rising prices and rock-bottom wages, meant more and more people could Dividing up the poor not support themselves. Also, Henry The 1601 Act established two VIII’s dissolution of the monasteries, kinds of relief: “outdoor” and whereby he stripped them of their “indoor.” Outdoor relief was the wealth and property, meant that most common and allowed poor the poor could no longer fall back on the Church for charity. With the system close to collapse, the Poor Law Act was introduced in 1601 to Economic pressures in the 16th century led to a growing number of beggars on Tudor streets. Punishments such as whipping and—for repeat offenders—hanging became common.

EMPIRE AND ENLIGHTENMENT 91 Bridewell Prison Bridewell Prison, depicted in The original “house of correction,” to work or guilty of minor 1720. At this time, it housed petty Bridewell Prison in London started crimes. Bridewell combined criminals and pauper apprentices, as life as Bridewell Palace, one of the prison, hospital, and workhouse, well as vagrants and others deemed homes of Henry VIII. In 1553, where inmates were forced to to be the “idle” poor. Edward VI, Henry’s son, gave carry out hard labor. Regular the decaying palace to the City punishments included public of London Corporation to be used whippings twice a week. as an orphanage and a place of “correction” for “disorderly” Bridewell was the model women—that is, prostitutes. By for future houses of correction, 1556, part of the site had become which in turn were often Bridewell Prison. After the 1601 referred to as a “Bridewell.” Poor Law Act, it became the The prison burned down in template for the idea of the “short, the 1666 Great Fire of London sharp shock” for those unwilling but was quickly rebuilt and remained in use until the 1860s. people to stay in their homes. were generous to the poor, while of poor relief undermined “the iron They were then given money, others were mean, and many tried law of wages,” in which wages known as a “dole,” or help in kind, to pass on their responsibility by were paid according to demand. such as clothes or food. Indoor relief shifting poor people to other parishes. compelled the homeless poor into The 1601 Act did, however, establish These ideas paved the way for almshouses (charity-run houses), the precedent of providing a basic a new Poor Law Act in 1834, which orphanages, or houses of correction, level of support for people in the ended outdoor relief, replacing it where people would be set to work. direst poverty, and for more than two with a system of workhouses where centuries, this was the one safety tough conditions were imposed to The poor who were “lame, net for those at the bottom of society. act as a deterrent. The workhouse impotent, old, blind,” and therefore was the stuff of nightmares, as unable to work were provided Punishment of poverty depicted so vividly by Charles either with outdoor relief or a place Despite the principle of charity at Dickens in his novel Oliver Twist. in an almshouse or hospital. The its core, the poor law system was It took more than 100 years of able-bodied poor with no home a double-edged sword. It aimed campaigning before workhouses might be sent to a “house of to punish poverty as much as to were abolished and replaced with industry”—the prototype for the support it and to be harsh enough a modern welfare system in 1948. ■ later workhouses—where they were to prevent a reliance on poor relief. provided with raw materials and [The 1834 Poor Law made to work. Conditions in these The issue of poverty as a crime Amendment Act] announces places were deliberately kept harsh came to the fore as the Industrial to the world that in England in order, it was argued, to act as a Revolution began in Britain in deterrent to falling into poverty the late 18th century and city poverty is a crime. and relying on public support. populations grew. Industrialists Benjamin Disraeli needed workers for their factories, Vagabonds and the “idle” poor and laborers were required to work UK prime minister (those branded as unwilling to the land in order to feed the (1868, 1874–1880) work) were sent to a house of increasing numbers. Philosopher, correction, which was a much jurist, and social reformer Jeremy harsher option. Here, they were Bentham was particularly insistent forced into hard labor, such as that poor relief should be framed beating hemp plants to make rope. to discipline and punish slackers. Meanwhile, political economist The effectiveness of the Poor David Ricardo argued that any kind Law Act’s provisions varied widely from parish to parish. Some parishes

92 PAENADCAEDIVSAGNLTOAGREIOOUUSS GROTIUS’S ON THE LAW OF WAR AND PEACE (1625) IN CONTEXT D utch philosopher and jurist Hugo Grotius’s views were colored Hugo Grotius (1583–1645) by the bloodshed taking place during FOCUS has been credited as the his lifetime, especially the Eighty International law “father of international law” due Years’ War and Thirty Years’ War. to his influential 1625 work, De BEFORE Jure Belli ac Pacis (On the Law of War had previously been seen 54–51 bce Cicero’s De War and Peace). Grotius was a as a legitimate political tactic, as Republica introduces ideas of proponent of the theory of natural popularized by Florentine politician natural law and natural right. law, which he saw as unalterable Niccolò Machiavelli (1469–1527). and universal. He believed that Grotius argued that war is only AFTER natural law derived from natural acceptable if it is just—for instance, 1648 The Peace of Westphalia rights and human reason and if a country faces an imminent threat is signed, recognizing the therefore could not be changed and uses force that is proportionate sovereignty and equality of by God or organized religion. to the threat. His insistence that states and ending Europe’s diplomatic efforts should be made to wars of religion. Grotius applied these ideas avoid war laid the foundation for our to international relations, arguing modern notion of international law. ■ 1758 The Law of Nations by that legal principles exist naturally Swiss diplomat Emmerich de and should underpin all dealings Vattel is published. The book between nations. He believed that builds on Grotius’s ideas to nations should have equal rights further define international law and sovereign status and that and make it more accessible. states should be subject to the same laws as individuals. In his view, 1863 The Lieber Code is the grievances between states should first to specify how soldiers be resolved diplomatically, and war should behave during conflict. should be waged only if no other solution can be found. Grotius also 1864 The Geneva Convention developed a system of principles to for the Amelioration of the govern international relations in Condition of the Wounded in times of war and peace. Armies in the Field is ratified. See also: The Peace of Westphalia 94–95 ■ Vattel’s The Law of Nations 108 ■ The Geneva Conventions 152–155 ■ The Hague Conventions 174–177

EMPIRE AND ENLIGHTENMENT 93 TAHNYD GTRRAAVNESGERRRESOSRION THE TRIAL OF GALILEO GALILEI (1633) IN CONTEXT P olish astronomer Nicolaus theory. The Church brought Galileo Copernicus published his before the Roman Inquisition in 1633. FOCUS book On the Revolutions Galileo admitted no wrongdoing but The crime of heresy of the Heavenly Spheres in 1543. accepted a plea bargain in which he He put forward the theory that agreed not to promote heliocentrism. BEFORE Earth orbits the Sun (which He was found guilty of heresy, put 1542 The Roman Inquisition became known as heliocentrism), under house arrest, and had his book is established by the Catholic contrary to the then-accepted banned. It was not until 1822 that Church to counter heresy. view that the Sun rotates around the Catholic College of Cardinals a stationary Earth (geocentrism). accepted that the heliocentric theory 1543 Nicolaus Copernicus’s could be true. In 1992, Galileo was book De Revolutionibus Heliocentrism challenged both finally cleared of heresy. ■ Orbium Coelestium (On the the natural philosophy of Aristotle Revolutions of the Heavenly and the traditional ideas of the The proposition that Spheres) is published. Catholic Church. Copernicus’s the sun is immovable in the theory was widely dismissed as 1600 The Roman Inquisition far-fetched, but in 1616, respected center of the world … is sentences to death Italian Italian astronomer Galileo Galilei absurd, philosophically false, cosmologist Giordano Bruno revived it. As a result, the Church for heresy, in part because he banned him from teaching or and formally heretical … says stars are distant suns. defending heliocentric ideas. Indictment against Galileo was warned not to espouse Galileo Galilei, 1633 AFTER anything other than the accepted 1757 The Catholic Church lifts Church view that Earth was the the ban on Galileo’s Dialogue center of the universe. on the Two Chief World Systems. Heliocentric theory 1989 The Iranian Islamic Galileo continued his studies and in government denounces author 1632 published Dialogue on the Two Salman Rushdie as a heretic. Chief World Systems, which once again discussed the heliocentric 1992 The Vatican accepts that Galileo was correct in adopting See also: Aristotle and natural law 32–33 ■ The origins of canon law 42–47 the Copernican theory. ■ Gratian’s Decretum 60–63 ■ The Salem witch trials 104–105

94 IOANFTTUNHRAETNIHIONINSGSTPOORIYNT THE PEACE OF WESTPHALIA (1648) IN CONTEXT B y the mid-17th century, the religious uniformity on the empire Holy Roman Empire (made by suppressing Protestantism and FOCUS up of territories in central promoting Catholicism. Many International law and western Europe and at this time Protestant states rebelled, forming ruled by the Habsburg dynasty) the Protestant Union and setting BEFORE had been plagued by conflict for up a rival emperor, Frederick V. 1555 The Peace of Augsburg decades, resulting in famine and allows each prince within the instability throughout the region. This religious war morphed into Holy Roman Empire to decree a conflict of dynastic ambitions, his state’s religion. The Thirty Years’ War (1618–1648) which pitted the Habsburgs of began when Holy Roman Emperor the Holy Roman Empire against 1568 The 17 provinces of the Ferdinand II attempted to enforce ascendant Bourbon France and the Low Countries rebel against growing military might of Sweden. Philip II of Spain, beginning At the Battle of Lützen in Saxony Meanwhile the Eighty Years’ War the Eighty Years’ War. in 1632, the Protestant king of Sweden, (1568–1648) between Spain (also Gustavus II Adolfus, was killed fighting ruled by the Habsburgs) and the 1618 The Thirty Years’ War the forces of Ferdinand II. Eight million provinces of the Low Countries, erupts between Protestant people died in the Thirty Years’ War. which sought independence, and Catholic states within the Holy Roman Empire. AFTER 1919 The Treaty of Versailles officially ends World War I and creates many new nation- states from the territory of former empires, including Habsburg Austria-Hungary. 1920 The League of Nations (the precursor of the United Nations, or UN) is established.

EMPIRE AND ENLIGHTENMENT 95 See also: Grotius’s On the Law of War and Peace 92 ■ Vattel’s The Law of Nations 108 ■ The US Constitution and Bill of Rights 110–117 ■ The Hague Conventions 174–177 ■ The United Nations and International Court of Justice 212–219 The Peace of Westphalia laid out rights that apply equally to all states, large or small. A ruler has the A ruler has the No state should right to determine exclusive right to intervene in another govern his land, people, state’s domestic affairs. the religion and agents abroad. of his state. These rights represented the Westphalian concept of sovereignty. rumbled on. The two conflicts were sovereignty to around 300 German a key tenet of international relations. hugely disruptive to the whole region principalities and recognizing the The modern international system, and, by the mid-17th century, all independence of Switzerland from enshrined in the UN Charter (1945), parties were ready to seek peace. Austria and the Dutch Republic requires that no state interfere in (made up of seven northern Low- another’s domestic affairs. Recent Negotiating peace Countries provinces) from Spain. globalization has seen a decline in After 194 states took part in lengthy sovereignty’s status and some now negotiations from 1644 to 1648, The Westphalian legacy argue for intervention in state affairs two treaties, together known as International law has its roots to avert humanitarian crises. ■ the Peace of Westphalia, were in the principle of Westphalian signed in the cities of Osnabrück sovereignty, which outlines that The first attempt and Münster. All states agreed to each state has sovereignty over to institutionalize an uphold the 1555 Peace of Augsburg its own lands and that other states international order … on principle of cuius regio, eius religio should not interfere in another a multiplicity of powers … (“whose state, his religion”), whereby country’s domestic affairs. (Even Henry Kissinger a ruler could decide the religion of so, some historians argue that his own state or principality. The while the principle grew from the American diplomat (1923–) Peace of Westphalia extended this Peace of Westphalia, it was not on the Peace of Westphalia right so that most subjects who did overtly described in the treaties not follow the state religion had the themselves.) The notion that all right to practice their own faith. states, no matter what their size, are equal under international law Crucially, the treaties laid out the also stems from the Peace. concept of exclusive sovereignty of each state over its own lands, The Westphalian concept of people, and agents aboard. They sovereignty developed further in the redrew the map of Europe, granting 18th and 19th centuries, becoming

96 MTTRYURARIADTNEOTRR,E,R THE TRIAL OF CHARLES I (1649) IN CONTEXT Charles I rules as Parliament argues an absolute monarch for a greater say FOCUS Parliamentary authority based on the divine in government. right of kings. BEFORE 1215 Magna Carta lays out Parliament declares itself The English Civil War sees the rights and liberties of the supreme power and the Parliamentarians English subjects. defeat the Royalists. puts Charles on trial. 1236 The term “parliament” is first used by the Crown, in The High Court of Justice finds the king guilty reference to King Henry III’s of treason for waging war on his own people. council of advisers. T he trial of King Charles I was absolute and that only he should be 1628 The Petition of Right unprecedented in English allowed to pass laws. This position reasserts the rights laid out (and European) history as put him at odds with Parliament, in Magna Carta. the first time a monarch faced trial which at that time was convened or for treason. Charles I subscribed to dissolved as the king saw fit but had AFTER the traditional doctrine of the divine for many years pushed for greater 1660 The monarchy is restored right of kings, believing that the influence. In 1641, when, against the when Charles II returns from monarch was chosen by God and wishes of Parliament, Charles raised exile in France. was therefore subject to no earthly an army to deal with a rebellion in authority (such as Parliament). He Ireland, it was seen as an affront to 1689 The Bill of Rights also argued that his power should be Parliament’s power. Events came circumscribes the powers of the monarch and defines the rights of the English Parliament. 1792 King Louis XVI of France is tried by the French National Convention on charges of tyranny and is executed the following year.

EMPIRE AND ENLIGHTENMENT 97 See also: The Assize of Clarendon 64–65 ■ Magna Carta 66–71 ■ The Glorious Revolution and the English Bill of Rights 102–103 ■ The Declaration of the Rights of Man 118–119 ■ The Universal Declaration of Human Rights 222–229 to a head on January 3, 1642, when This portrait of Charles I is by I do stand more for Charles attempted to arrest five Flemish artist Anthony Van Dyck, who the liberty of my people, Members of Parliament, and the became principal painter to the king in than any here that come Speaker of the House defied him. 1632. Charles was passionate about art to be my pretended judges. and commissioned many royal portraits. Civil wars and trial Charles I A series of three civil wars from Dorislaus, who wrote the indictment, 1642 to 1651 ended in triumph based it on an ancient Roman law head of state and the head of the for the Parliamentarians under that a military body (or government) government from 1653 to 1658. Oliver Cromwell, albeit at a cost had the right to overthrow a tyrant. However, the new regime did not of 200,000 lives. Charles was bring political stability, as Cromwell placed under arrest in 1646, and The trial began on January 20, clashed with his parliament and in 1648, Parliament was purged of 1649, but without the full support was heavily reliant on the army for any members opposed to putting of the judiciary—of the 135 men support, and public disaffection the king on trial, resulting in what nominated to sit in judgment, only grew. When Cromwell died in 1658, became known as the Rump 68 attended. Charles repeatedly his son, Richard, succeeded him as Parliament. Supported by Cromwell’s refused to accept the validity of Lord Protector, but soon resigned. New Model Army (a reformed army the court, arguing that a parliament In 1660, Charles II was restored to with improved military resources), that had been purged of opposition power. Those who had committed the Rump declared itself the supreme could not claim to represent the regicide by signing Charles I’s power, with authority to pass laws people. On January 27, he was found death warrant were put to death. ■ without the backing of the monarch guilty of being a tyrant, a traitor, a or the House of Lords. murderer, and an enemy to England reassert the rule of law and to and was sentenced to death. He confirm the rights of free men One of the Rump’s first acts was was publicly executed at Whitehall, and Parliament. The format of to pass an ordinance on January 1, London, on January 30. the petition was crucial, in that 1649, setting up a High Court of it reasserted existing rights as Justice to try Charles on charges Monarchy restored opposed to creating new ones. of waging war on Parliament and The execution of Charles I allowed against his own people. There was Oliver Cromwell to take power as Charles reluctantly agreed no precedent in English law to try Lord Protector—serving as both to the petition, recognizing that a king, so Dutch lawyer Isaac he needed Parliament’s support The Petition of Right to raise any further taxes. He went on to ignore it in principle— The difficult relationship between but the fact that the Crown had Charles I and his parliament is accepted the petition gave it the exemplified by the 1628 Petition same constitutional importance of Right issued by Parliament. as Magna Carta itself. This stemmed from the “forced loan” that Charles had pushed through after Parliament refused his request to grant a tax to fund war with Spain. The forced loan meant Charles’s subjects were compelled to “gift” the Crown money or face imprisonment. Parliament saw this as going against Magna Carta and so drafted the Petition of Right to

98 IN CONTEXT HRSAEELHLLAADLLSLELTSOABVTEBEAETSE FOCUS Law codes, slavery SLAVE CODES (1661–18th CENTURY) BEFORE 1619 The first African slaves are landed in North America, in the colony of Virginia. AFTER 1865 Slavery ends in the United States but is replaced with the “black codes.” 1954 The US Supreme Court declares that school segregation on racial grounds is unconstitutional. 2000 Alabama is the last state to lift the ban on interracial marriage. 2013 The US Supreme Court overturns the last remaining restrictions on African American voting rights. A year before the Mayflower carried 102 colonists from England to New England in 1620, a Dutch ship, the White Lion, landed farther south at Point Comfort, Virginia. Onboard were 20 African slaves, the first to arrive in North America. By the end of the century, more than 20,000 slaves had been imported, and by the time of the US Declaration of Independence in 1776, the slave population was nearly half a million. Many Europeans had come to America to find freedom and make a new start. Others were there to exploit the profits to be made from growing crops such as tobacco, rice, and indigo. The harvesting and processing of these crops required labor on a large scale,

EMPIRE AND ENLIGHTENMENT 99 See also: The US Constitution and Bill of Rights 110–117 ■ The Declaration of the Rights of Man 118–119 ■ The Abolition of the Slave Trade Act 132–139 ■ The Universal Declaration of Human Rights 222–229 ■ The Civil Rights Act 248–253 Slaves in the US in 1790 The US held its first national census in 1790. The population was counted in all 13 states, plus the districts of Kentucky, Maine, and Vermont. “Slaves” were listed separately from “free white males” and “free white females.” No slaves were counted in Massachusetts or Maine, which had unofficially abolished slavery. By 1840, the slave population had tripled. State/district Slaves Slaves as % of 13 state population 15 1. Virginia 292,627 2. South Carolina 107,094 39% 14 3. Maryland 103,036 43% 4. North Carolina 100,572 32% 7 6 16 5. Georgia 29,264 26% 5 10 6. New York 21,324 35% 12 7. Kentucky 12,430 6% 1 11 8. New Jersey 11,423 17% 8 9. Delaware 8,887 6% 10. Pennsylvania 3,737 15% 9 11. Connecticut 2,764 <1% 12. Rhode Island 948 1% 3 13. New Hampshire 158 1% 14. Vermont 16 <1% 4 15. Maine 0 <1% 2 16. Massachusetts 0 0% 0% Total US population 3,893,635 Slave population in US 695,280 Percentage of slaves in US 18% which could not be provided by shipped to the South, where they slaves’ masters, and as slave the settlers or the Indigenous were set to work on plantations. numbers grew, so the American population. African slaves had Once the invention of the cotton colonies set up policing rules, or already proved their worth in the gin in 1793 transformed the speed codes, to keep slaves under control. South American and West Indian with which cotton seeds could be Virginia, the largest slave-owning colonies of the Spanish, Dutch, separated from fibers, slaves were colony, introduced its first slave Portuguese, and English, so it tied to the cotton plantations that statute in 1639, declaring that, followed that they would provide spread across all Southern states. “All persons except Negroes are the necessary labor for the new to be provided with arms and plantations of North America. Master and slave ammunitions or be fined.” Despite enduring backbreaking In the 17th and 18th centuries, work and poor conditions, slaves In 1661, the English colony of slaves were imported across the rarely rebelled. The prospect of Barbados in the Caribbean went southern and eastern North rebellion, however, terrified the further. Here, newly planted sugar American seaboard, with most estates were proving highly ❯❯

100 SLAVE CODES profitable, and owners were taking Slaves are generally for a master who overstepped even on even more slaves to work them. expected to sing that mark. According to another The colony passed “an act for the as well as to work. 1705 Virginia code, any master better ordering and governing of who killed a slave while “correcting” Negroes,” which for the first time Frederick Douglass that slave “shall be free of all enshrined in law the subjugation of punishment … as if such accident plantation slaves to the will of their Human rights leader and had never happened.” Later laws masters. Other Caribbean colonies, former slave (1818–1895) applied some restrictions on the such as Jamaica and Antigua, and actions of slave owners, but even if all Southern American colonies a master were found guilty, often followed suit, establishing their own the best the slave could hope for official slave codes. Virginia took the was to be sold to someone kinder. lead by following the Barbados model and in turn influenced the Limiting basic freedoms codes of Maryland, North Carolina, With the growth of Southern cities, South Carolina, and Georgia. such as Charleston in South Carolina and Lyndhurst in Virginia, Less than human animals rather than afforded rights opportunities for labor increased As well as providing an escalating as individual human beings. A and owners began to hire out slaves scale of punishment for a slave who Virginia code of 1705 went beyond for profit. Such slaves had to carry a offered “violence to any Christian,” “chattel,” replacing it with the term permit or wear a copper slave tag the 1661 Barbados slave code set “real estate.” This made slaves the to prove they had their owners’ out another purpose—to “protect property not only of the master, permission to travel. In New York [slaves] as we do men’s other goods but also of his descendants. and elsewhere, harsh penalties were and chattels.” Under the guise of imposed if slaves walked the streets looking after the interests of slaves, Masters could enforce slave at night or congregated together. the aim of the code was to ensure a codes in many ways. Whipping, master’s total control. As “chattel,” branding, and imprisonment were Until the 1830s, a slave could be slaves were part of his personal common. Killing was rare because taught to read or write, but after the property to be bought and sold like slaves only had value while alive, Nat Turner slave rebellion in 1831 although there was no punishment (see box, opposite), most slave states banned such teaching. In Virginia, statutes passed in 1831 and 1832 even banned education for freed slaves. Slaves had no legal right to get married but were often allowed to do so. Many owners believed that married slaves were more likely to be settled and less likely to rebel. Slave marriages also produced more children and so boosted slave numbers. Any married slave, however, had to be prepared for the break-up of a family when at any time a wife, husband, or child might be sold to another owner. In a newspaper notice of 1769, future US president Thomas Jefferson offers a reward for the capture of a slave. Most of America’s Founding Fathers, like Jefferson, were slave owners.