by Michael Pye
Jan van den Berghe wrote his own definitive book on the legal system of Flanders in the early fifteenth century, and knew its workings from inside, but he reckoned the way to learn lawyering was like learning any other craft: ‘old people are obliged by law to teach the young’. He thought ‘the more one has seen, the better an expert one is’. He did not think books and texts were everything. When he was faced with a tricky case involving marriage, money and death he said he’d ask someone who knew the books of law, but only because ‘whenever custom is not opposed to the written laws, one ought to give judgement according to the latter’. The rule of law was still conditional.70
When merchants needed to sort out a business quarrel, or clerics wanted to prove title to land and income, they wanted results and as soon as possible. They got into the habit of sidestepping the slow, expensive courts.71
Just as Roman law was being rediscovered in the twelfth century, with all its cumbersome machinery, so was arbitration – the ancient system meant to get disputes out of the courts and briskly settled. You handed the evidence to the arbitrators, gave them the widest possible powers so there would be no delays in getting a judgment and expected a compromise more than a verdict.
Law could now be international, not just national, not just local and customary. When the parties to the dispute were both foreigners, then the decision could be made in line with the law where they came from. Law travelled, as money once travelled, along with trade. In time, the big ports like Bruges had consular courts which sorted out their own nationals – issues like drunks, gamblers, damaged ships, lost cargoes, labour disputes or brawls between sailors, provided nobody was killed. Even local courts speeded up when merchants were involved, because disputes often broke out at fairs, which would be gone in a week with everyone out at sea or back on the road; in Bruges from 1190 the courts had to rule within three days, and they had to meet at least twice a week.
But if the merchants were settled in a city, then arbitration was the best solution and debts were often the issue. Nobody wanted to call in debts because that would wreck a man’s creditworthiness and make endless trouble for his other creditors, and the dates for repaying a loan were never very exact in any case. Creditors felt obliged to be patient. You started with friendly letters. Hildebrandt Veckinchusen lost money in the cloth business and in shipping salt, could not get the Emperor Sigismund to pay back what he owed, and couldn’t raise money anywhere he tried, not in Antwerp, not in Cologne, not in Lübeck. He owed money to Weits and Kupere, whose first reaction was studied and polite: ‘Hildebrandt, dear friend, do realise that I am surprised you did not give us your money, because we can make good use of it and we need it.’ Veckinchusen then met all his creditors round a table at an Antwerp hostel, talked them into waiting and reorganizing his debts, but the money never came. His Antwerp agent was mobbed by angry traders, and told Veckinchusen to come back to town, which he did, but he still did not have the money. Only after more months of waiting did a banker from Genoa lose patience and lock him in the debtors’ prison of Bruges.72
In these cases, paper mattered less, talk more. Truth, as one twelfth-century pope decreed, should be pursued ‘simpliciter et pure’, which means ‘pure and simple’, without the subtle turns of Roman law which, he seemed to think, might actually get in the way. Arbitrators noticeably liked to leave lawyers out of their proceedings, the ‘time-wasters’ denounced in one judgment of 1259. Justice was a private matter again, since arbitration could work only if both sides agreed to abide by the outcome; there was no prosecutor, no idea of public good. In fact, custom was back, speaking Latin. The proof of how much law had become a set of rites and procedures and experts was the number of cases deliberately settled without it: ‘sine strepitu advocatorum’, without the rumbling and rustling of lawyers.
Once it had been communities who knew how people should behave, what was appropriate, what was right; they knew their own rules. When people could not move away from each other, they were obliged to be tolerant. Now it was the law and the professional class of lawyers who had more and more to decide what behaviour meant, whether it was odd or mad or wrong.
The clerk Richard le Pessoner was sick in 1285. One night he woke up in the same room as his master, Brother Walter: he was ‘frantic and mad … [then] by the instigation of the devil, [he] smote Walter on the head as he slept’, first with a form, then with a trestle, with all the sparse furniture he could lift, ‘so that the brains came out’. He went to tell his brethren what he had done, confessed: ‘I have killed my dear Master’, and he laughed and laughed.
The laughter was the shocking part, the legal proof of madness. Richard was still obviously mad in prison a month later, which was not a disadvantage in some ways; already in the thirteenth century the law said ‘madmen committing crime in their madness ought not by law to undergo the extreme penalty nor to forfeit their goods or chattels’, and most people who seemed mentally ill were pardoned even if they had killed.
Bizarre behaviour was only part of the diagnosis; for the law memory also mattered. The tests for memory were much like the tests for dementia nowadays: asking the days of the week, which town someone lives in, the value of a handful of coins.73 Mind and memory were what you needed, in good working order, to make your last will and testament; they were the law’s notion of what kept a human being entire. A landowner born sick would lose his income to the crown, but if he fell ill later in life, his income was put aside for him in case he recovered. The wretched Hugh of St Martin, vicar of All Saints Beyond the Bridge in the Lincolnshire market town of Stamford, went mad in the winter of 1298 and was left so poor he was reduced to pawning even his own clothes. He was maltreated and robbed, which we know because his bishop excommunicated all those who had ‘lain violent hands’ on Hugh, and later all those who stole from him while he was out of his mind; but he was also sent away for a while to recover, and seven months later he was back at work. He had promised to behave discreetly; other priests had promised to tell the bishop if Hugh went wrong again.74 There was a generous expectation that a sick man could get well again, and the courts reckoned they could tell if that was happening or not.
Once the ordeal had settled the question of whether someone was lying or telling the truth, and therefore innocent or guilty; but now the law was no longer just about who did what. It was about why and in what state of mind and with what intent and how a person acted before and after and during and what he was likely to do next. The law was opening little windows into souls.
7.
Overseeing nature
1 October 1250, a new moon rising huge and red: a sign of storms to come – or so Matthew Paris wrote. There was dense mist. There were violent winds tearing down leaves and branches. The sea rose far above its usual level, the tide swept in and swept in again, there was a terrible, unfamiliar roaring like nobody could remember. ‘In the darkness of the night,’ Paris wrote, ‘the sea seemed to burn as if set on fire and waves joined with waves as if in battle.’
Strong ships foundered. Houses and churches were broken down by the violent rise of the sea. In Flanders and in England there was damage beyond repair in areas that were low-lying. Rivers were forced back from the sea and flooded the land so that meadows, mills, houses were destroyed and ‘the corn not yet stored in the barns was swept away from the flooded fields’.1
This is the usual story: how nature makes life difficult for man. Sand drifts and smothers, water breaks into the land, shorelines where people live are washed and battered into new shapes and sudden storms like the night of the red moon take a whole harvest and leave hunger behind. Nature is arbitrary and man is her victim. It is also much less than half the story: the more important half is what man did to nature. Deliberately, carelessly, accidentally, catastrophically man began to remake whole landscapes and change the balance of half a continent. In doing so, he turned the effect of wind and tide into a disaster.
Of course, it did not seem that way at the time. New towns
wanted food, and couldn’t grow it for themselves: no room, no time. New towns and their new industries needed fuel, more and more of it. Those two appetites began chains of change with consequences from floods and ruin to the careful cleanliness of streets in Holland and the first model of how to organize a limited liability company. Man imposed himself on the world, sometimes without meaning to.
These are the chronicles of the war between man and the natural world.
There were new dunes forming along the shore of the Netherlands, great loaves of sand, and so there was less land to plough and plant. Human beings started to quit the coast in the tenth century, and they moved inland to the peat zone. The domes and cushions of peat, standing four metres proud of the bog itself, looked like the terpen, the kind of hillocks which they had used as refuges before. A century of drought made the bogs seem almost accessible, and if drought could do that, man could do better. All it took was ditches and canals to drain off the water from the high peat domes to the pools that pockmarked the low bog, and you can dig a ditch with the tools any peasant owns: no new technology required. Once drained, the land could be farmed. All the sodden peat in Waterland, which is just north of Amsterdam, became land for farming in this way.
The first problem was this: the new system for drainage worked too well.2 Peat that is wet will hold plant stuff without letting it decay, it keeps in the carbon dioxide essential for photosynthesis and it keeps back the rush of storm water. Peat without water is a fluffy thing, and almost nothing, a tenth of its original volume. As the floor of the bog dried and shrank, it sank closer and closer to the water level underneath, going down by as much as two centimetres a year. A whole landscape was dropping dangerously close to the level of the sea beyond the dunes. It was also growing hostile; without water, the top layer oxidized, letting off the carbon it stored and also turning sour. The cattle brought in to work the dried peat pastures only trampled the land down further.
The town of Medemblik sat in Waterland on the side of the Almere lake. It was a transit town for freight coming from the Rhine and heading to the North Sea on its way to Scandinavia and England. It seemed almost secure. The more the peat sank, the higher stood the ridge of sand where Medemblik was built. Storm surges brought in sandy clay to bind and cover the sand. The town was surrounded with cornfields, with oats and barley, which could stand the occasional flood of seawater, with salt marsh where cattle and goats, some sheep and the occasional pig could graze; from their remains we know the sheep died old, which means they were raised for wool, not mutton. There was always more peat to reclaim, so it seemed, when the old land became too sour and salt for corn.
Then the waters turned on the land.
At first an old ridge of peat kept the North Sea out of the Aelmere lake, but the peat was becoming sour and it was unsettled by the sinking land. Storms beat it right down. The sea broke into the lake, and turned it brackish and tidal: what used to be called the Zuider Zee. The sunken land flooded. The south bank of the Middenleek River, where the town stood, was partly washed away; the empty north bank simply disappeared in the wind and waves and tides.3
Men are obstinate: Medemblik was built again, plot by plot. The ground was raised with peat and clay, the embankments were made to slope steep on the water side, gentle on the land side so there would be a barrier against water seeping through. A line of houses stood unbroken on the ridge. But trade routes were shifting; now the townspeople had to go out to trade rather than simply wait for the trade to come to them. The reclaimed land was almost ruined. Salt-marsh plants took root in the old bog. Farming stopped; cattle and sheep took its place. Villages moved to higher ground, sometimes built higher ground for themselves, or else were washed away as Medemblik so nearly was.
There was a lesson in this: water had to be managed, not just drained.4 There were ditches and canals to make the water flow where it was needed, or at least harmless, but there also had to be dikes and dams to keep the water out. Every detail of slope and gradient mattered. Between 1100 and 1300 most of the Zuider Zee was lined with dikes to stop the land washing away: dikes made of cut peat and clay, sometimes with mats of reeds, sometimes with seaweed. The land was not all sinking at the same rate: it made a patchwork landscape with indentations, like a floor with tiles missing. To stop flooding from one level to another, all the land had to be pumped dry and the drainage canals had to run on embankments higher than the fields so there was enough of a gradient for them to drain. The Rhee, the same kind of high, narrow canal, was built across Romney Marsh in England above land that had been reclaimed, just to get a run of water which could break and move the silt in the harbour at Romney.5
Sand, silt and sinking land were problems all around the North Sea. From now on, there could be no more unconsidered landscape; even doing nothing to the land was a strategy and a plan.
The Dutch already had a reputation for managing water, even before 1250. They were invited to North Germany in the twelfth century to drain the peat bogs, to start the ‘golden ring’ of dikes on the North Sea coast. Their expertise was not even especially in building dikes, since the first to go north were men from Leiden, where dikes had not yet been built on any scale; they were simply thought to understand how water worked. They were invited by local lords, once by the Bishop of Bremen and Hamburg, and they carried with them much more than their expertise; they were allowed to settle and maintain their own Dutch laws, were granted fen and undrained land, and were accepted as freemen for centuries. They disrupted feudal rules entirely, and they did so in territory where land drainage had often begun with the collective efforts of local farmers rather than orders from above. When Germans drained land, with or without Dutch help, they were often allowed the rights the Dutch claimed: ‘free ground with free people’.6
They would go travelling later for land or for money, to Prussia and to what is now Poland, but the knowledge of how to manage water also became a passport for Anabaptists going east, and Catholics who were uncomfortable when the Netherlands became the United Provinces under Protestant rule in 1581. They seem to have inspired the later reclamation of land from the sea in Ostfriesland on the North Sea coast where modern Germany meets the modern Netherlands; again, it was a scheme organized by local farmers, which led to the ‘farmers’ republic’ of Dithmarscha. The Dutch took a certain style of landscape with them: houses strung out along a road, for example, and lines of houses on a dike with reclaimed land behind, but their politics were even more important. The word ‘free’ started to matter where they had been.
At home, everyone knew that water had to be watched and controlled. Everyone co-operated. Everyone also knew, unfortunately, that the towns needed more and more peat. Holland was beginning to have breweries on an almost industrial scale, and they needed peat as fuel to keep their fires burning. There were the furnaces of brickworks, the heat needed to dye cloth and later there would be the sugar works in Amsterdam. Dutch peat was being sold as far south as Antwerp. Where there was still peat it was first mined dry from the edges of the bogs, but the demand kept growing. Hollanders had to learn from Norfolk in England, where the miners were already in the twelfth and thirteenth centuries going deep for the brushwood peat buried under a scant surface of turf. Around 1300, the peat pits had filled with water, and the ponds began to flood together; water began to block the mining. It was necessary to find ways to dredge peat out of standing water and ferry it to dry land using boats; ‘the ferrying of fen’. A new landscape formed in the Norfolk Broads, streams between marshy islands in an unsettled wetland. It should have been a warning of what would happen when the Dutch ran out of the easy stuff and started to use the same techniques.7
Peat-mining was an industry, not a sideline for small farmers and peasants any more; it needed more and more hands. The old drains, the small dikes, dams, sluices and canals that kept the land clear and accessible, also needed constant work. The situation would have been difficult in any case, but it was compounded by the appalling mortality from the
Black Death: there were not enough strong backs to keep the land safe.8
Already in Flanders there was a new kind of authority: the water board, whose job was to protect the land from flood and the surges of the sea. The boards in other places only inspected what landowners had done, approved or condemned, but along the Flemish coast they started to organize the work themselves from the second half of the thirteenth century. They hired labourers, often whole families, including women and children; they hired contractors; and they levied a water tax on every landowner according to the size of his lands.
All this is remarkable because it could not start without capital, often raised from rich abbeys but later from investors: essentially a private company for a public good. Bruges had a money market sophisticated enough to hand out malignly expensive short-term loans, which was a start, but the cost of the money was far too high and over time the control of water required more and more spending: on new ways to make dikes solid, on sluices made of brick and stone with double doors with copper fittings, on the mechanization of the sluices that let water out and back to the sea. Landowners invested in the water boards to protect only the land which could make them money, and they were hard-headed enough to abandon whole islands, even small towns like Biervliet that had once been famous for salt and herring but now was cut off from the shore and subject to tidal plagues of rats. Land became an investment for city people, not the basis for a man’s whole identity and his place in the world. Water boards, too, were an investment, and the shareholders had liability limited to the amount of land they owned in the board’s area.
