The fire had been burning in the church since first light, and a man stood beside it and watched the iron get hotter and hotter. The man had eaten nothing for three days. He had heard mass that morning, and sworn before God that he had not done it. Then the priest sprinkled holy water over the coals and asked God to make the truth plain.
A man had been found dead on the road below the village that spring, and the dead man’s brother had stood up in the county court and named the man for it, but there was no proof either way. So the question of guilt had been given to God.
When the iron glowed red hot, it would be put into the man’s bare hand, and he would carry it three paces across the flagstones and set it down. Then his terribly burned hand would be bound at once and the linen sealed. Nobody would touch it for three days, and on the third day, the priest would break the seal, unwind the bandage and look at the wound. If the burn was clean and beginning to heal, God had spoken for the man and he was innocent. If the wound was swollen and weeping, God had spoken against him, and he would hang for murder.
The ordeal was called the judgement of God, and for centuries it was how a serious accusation ended in England when there was no convincing evidence either one way or another, and it was one man’s word against another. There were other forms of the ordeal. A man could be lowered on the end of a rope into a pool of blessed water, and if he sank the water had accepted him and he was innocent. But if he floated, it had rejected him and he was guilty. And there was trial by battle, which the Normans brought over, in which two men fought until one of them could not stand, on the belief that God would strengthen the honest man and weaken the guilty.
None of this left much room for arguing about law, or proof, or justice, but then a king offered people something else.
King Henry the Second, the red-haired, restless Frenchman who spent thirty-five years putting England back in order, had built a system of royal courts and sent his judges into the countryside to hold them. But how to get people to use them. He could not simply order men to bring their quarrels to him, because the great lords had held courts of their own for generations and their right to do so was ancient and untouchable. So he did not order. He advertised.
The advertisement was the jury.
Henry did not invent the jury. It began as a tool of government rather than of justice. A king could call local men together and put them on oath to tell the truth about anything that touched his own interests, which is how William the Conqueror found out what England was worth when he ordered the Domesday survey. Twelve men from a neighbourhood could say who held which field, and be made to swear to it.
What King Henry offered was this. A man who came to the king’s court in a quarrel over land need not physically fight for it. He could have twelve men of the neighbourhood swear an oath and declare who had the better right. The lawyer who wrote the first book of English law called it a royal boon, a gift from the crown, and said it spared men from a sudden and early death, because the outcome of combat depended on the strength of two men where the new procedure asked the oaths of twelve and was more likely to reveal the truth.
But nobody wanted those twelve to be strangers. They were chosen because they knew the area and the people who lived there. Those men were more likely to have heard any argument or to know more of the history behind a dispute. Those twelve men were both witnesses and judges. The juror we have today who knows nothing about a case until it is proved in court would not arrive for centuries.
And only the king could grant permission to form a jury. King Henry made sure of that. He would not give it to a lord’s court, only to his own court, so every man who wanted the better kind of justice had to come to him for it.
The ordeal itself he left alone. A man presented by his neighbours for murder still went to the water, a man accused by name still carried the glowing hot iron, and that did not change in Henry’s lifetime or his sons’.
Importantly, to get your case heard in one of his royal courts you needed a writ.
A writ was a small strip of parchment, written out by one of the king’s clerks and sealed with wax, and it carried a precise set of words. There was one set of words for a man who claimed he had been put out of his land, another for a debt, another for an inheritance. The words were fixed and unchangeable. If your dispute or problem did not fit the wording of any writ that existed, you had no case at all, and if you bought the wrong writ you lost, however much you were in the right.
In the years around 1190 there were fewer than forty writs, but by the reign of Henry’s great-grandson, King Edward the First, Edward Longshanks, there were several hundred writs, and every new one took another quarrel out of the lords’ courts and into the king’s.
So a justice mechanism had been built, and it gave England better justice than anything the country had known before. But it was the crown’s machinery. It ran on the king’s writs, in the king’s courts, under the king’s judges, and it passed down with the crown from one man to the next. No part of it could be turned against the man at the top. A bad king could be resisted, or endured, or rebelled against, but he could not be taken to law, because the law was his.
That was the flaw, and nobody had found a way round it. What happened next was that England stumbled into one by accident.
It was the Church that ended it, not a king. In 1215, at a great council in Rome, the Pope forbade any priest to bless the iron or the water, and without a priest the ceremony was only a burn and a ducking, which settled nothing.
That was the year the barons cornered King John at Runnymede and made him seal the Great Charter. Within weeks he had persuaded the Pope to cancel it, and the barons, who had run out of patience with him entirely, offered the crown of England to Louis, son of the King of France. Louis came, and brought an army, and by the autumn of the following year he held London and the Cinque Ports and half the country was against its own king.
That was where matters stood in October 1216, when John died of dysentery at Newark, worn out and still fighting. Much of the royal baggage, and by tradition the crown jewels with it, had gone into the mud of the Wash a few days before.
King John’s heir was nine years old. They crowned the boy at Gloucester nine days after John’s death, in an abbey church a long way from Westminster, because Westminster was in enemy hands. Also the Archbishop of Canterbury was abroad. There was no crown, so the boy’s mother gave up a plain gold circlet of her own and they used that. William Marshal, the greatest knight in Europe and seventy years old, knighted the child before the ceremony began, and then agreed, without much enthusiasm, to govern the country as regent until he grew up. The boy was King Henry III.
Three years later, a letter went out to the royal judges telling them to find some other way of trying men accused of serious crime, because the ordeal was finished. It was the sort of decision that changes how justice works in a country, and it was issued in the name of a boy of eleven who had never yet made a decision in his life.
And that time period was pivotal. For ten years England was governed in the name of a king who did not govern. The judges conducted the local courts, the writs went out, the sheriffs answered for their shires, and a regent and a council ran the country. The men who ran England in 1258 had grown up knowing that England could be governed by a council, and not by the king, because they had watched it happen.
William Marshal, the regent, used the years well. His first act was the shrewdest thing anyone did in that whole miserable war. He reissued the Great Charter, the same charter the rebels were supposedly fighting for, in the boy’s name. It cut the ground from under them. They could not continue to fight, as what they were fighting John for was granted by his heir, the nine-year-old King Henry III.
Some rebels remained, but they were beaten on the streets of Lincoln in May 1217. In August the fleet coming to relieve them was caught off the Kent coast near Sandwich. The English ships worked upwind of the French ships and threw pots of powdered lime into the air so that the wind carried it into the faces of the French. They then attacked the half blind sailors. After that Louis of France went home. The Charter was issued again to mark it, and again in 1225 in the form it kept from that day on. Because of those reissues, Magna Carta became part of the law of England.
King Henry the Third grew up gentle, devout and interested in beautiful things. He rebuilt Westminster Abbey, the church you can walk into today, and it was the great work of his life. He was also, as a ruler, a disaster with money.
The trouble was mainly that he loved giving it away. He married Eleanor of Provence, and her uncles came with her and were given lands and offices, and his half-brothers arrived from France and were given more. English barons who had waited years for a wardship or a manor watched them go to charming strangers from Poitou and Savoy who could not be bothered to learn the language of the country that was paying for them. Then in 1254 the Pope offered Henry the crown of Sicily for his younger son Edmund, and Henry accepted, agreeing to send an army and to stand surety for papal debts of some ninety thousand pounds, but King Henry had neither.
So he sold plate, jewels, rights and privileges to anyone who would buy them, and when the barons and the bishops told him he could not have their money, he told them that servants do not judge their master and vassals do not bind their prince with conditions.
They bound him anyway.
In the spring of 1258 he had to summon a great council and ask for money, and the answer he got was a price. Twenty-four men would be chosen to reform the government of England, twelve named by the king and twelve by his opponents. They met at Oxford that June, and what came out of it was the most radical document England had yet produced. Later generations called that meeting the Mad Parliament, which tells you what the people who lost thought of it.
The Provisions of Oxford put the king under a council of fifteen. The chancellor and the treasurer and the justiciar were to answer to that council rather than to King Henry. A parliament was to meet three times a year, and whether the king wanted them to meet or not. In every county four knights were to be elected to sit in the county court and write down complaints from anyone who had been wronged by a sheriff or a bailiff. And the chancellor was forbidden to seal any new writ on the king’s word alone.
That last clause is easy to read past. It meant that the machinery the second King Henry had built was no longer entirely the king’s to alter. The law had grown up around royal writs for a hundred years, and now the men who lived under it had a hand in their writing.
The proclamation announcing the new arrangements was sent to every sheriff in England, and it went out in English as well as in Latin and French. No royal document had been issued in English since the Norman Conquest, nearly two hundred years before. Somebody had worked out that this one needed to be understood by people who had never learned French.
It was around this time that a new word began to attach itself to these meetings. The old name was a colloquy, a talking-together, which is what the chroniclers called it when William the Conqueror took deep speech with his wise men before the Domesday survey. The new word came from the French for speaking. Parliament.
The man who drove it all was not English. Simon de Montfort was born in France, a younger son of a crusading father, and came to England as a young man to claim the earldom of Leicester through his grandmother. He married the king’s sister in secret, which caused a scandal, governed Gascony for Henry, quarrelled bitterly with him about it, was put on trial and acquitted, and forgave none of it. He was hard, devout, impatient and entirely certain of himself, which is a dangerous combination in a man who is usually right.
What made him more than another angry earl was what he did next. Having forced the king to answer to a council, he turned round and told the barons that the same rules applied to them. He took up the cause of the lesser knights, the landholding gentlemen who actually ran the shires and who had banded together under the name of the Community of the Bachelors of England, and he began rebuking great lords for the way they treated their own people. That was the moment the baronial party split, and it never properly came back together.
In 1261 the Pope released King Henry from his oath to keep the Provisions, and Henry threw out the officials the barons had appointed. For a while there were two governments in England, each cancelling the other’s orders, and both of them sent for representatives of the shires, the barons summoning them to St Albans and the king to Windsor on the same day.
In the end the quarrel was put to Louis of France, who was famously just and would in time be made a saint. In January 1264, at Amiens, he found for King Henry on every point and declared the Provisions void. He was a king, and he did not believe a king should answer to a council.
So it came to war, and the war was ugly. Along the Welsh border Simon’s sons burned out the lands of men who had sided with the king. In London and Worcester and other towns his supporters attacked the Jewish communities, killing people and destroying the written records of debts owed to them, and Simon did not stop it. That belongs in the same story as the parliament, and it should not be left out of it.
Then the war came to Sussex.
On the morning of the fourteenth of May 1264 the royal army was quartered at Lewes, in the castle and the priory below it, and Simon’s army came over the downs before dawn and drew up on Offham Hill above the town. His left was made up of Londoners, volunteers with little armour and less training. Prince Edward, the king’s son, took the royal cavalry straight through them, rode them down, and then, boiling with an old grudge against the city, chased the survivors for miles instead of turning back. By the time he came back his father had been driven down into the town and taken, along with the king’s brother, and there was nothing left to rescue.
Simon had been thrown from his horse some weeks earlier and had travelled to Sussex in a covered litter. However, he was well enough to fight by the morning of the battle, and he left the litter standing on the hill with his banners on it, and shut the royalist hostages inside for safekeeping. Edward’s men found it, took it for Simon’s command post, and killed the men they found within. Those men were on their side.
By nightfall Simon de Montfort held the King of England, the king’s brother and the king’s son. For fifteen months he ran the country in Henry’s name, and Henry, treated throughout with elaborate courtesy, went where he was taken and put his seal to what he was given.
Which brings us to the writs that went out on the fourteenth of December 1264.
They summoned a parliament to Westminster for the twentieth of January. Bishops and abbots were called, and the earls and barons Simon could trust, which was not many, twenty-three in all. Two knights were to be elected in every shire. And two men were to come from each of the larger towns, from York and Lincoln and Sandwich, and four from each of the Cinque Ports, chosen by the townsmen themselves.
That last part had never been done before.
Knights of the shire had been summoned before, usually when a king wanted a tax and needed the counties to agree to it. Townsmen had not. A burgess was a man of business, a wool merchant or a draper, who owed his standing to trade rather than to land or blood, and the crown had never had any reason to want him in the room. Now the writs went out in the depths of winter at five weeks’ notice, and the townsmen who had rarely ridden beyond the next market town rode to Westminster to sit amongst earls.
It would be pleasant to say this was done out of principle. It was not, or not only, done out of principle. Simon summoned the towns because he needed friends and the barons were deserting him, and everybody at the time understood that perfectly well. The parliament dutifully approved what he had already decided.
But the writs had been sent, and a thing that has been done once can be done again.
By the summer it was over. Edward escaped his guards at Hereford at the end of May, on the pretext of trying out horses, riding each one until it tired and then going off on the last fresh one. He gathered the Marcher lords, cut Simon off from the east, and caught his son’s army sleeping in the town below Kenilworth Castle. Simon, penned in the west and knowing nothing of it, crossed the Severn and marched for Evesham.
On the morning of the fourth of August 1265 the watchmen saw banners coming down from the north and cheered, because they were the banners of Simon’s son. They had been taken at Kenilworth three days before. Edward was flying them deliberately.
It was remembered afterwards that Simon looked at the army on the hill, twice the size of his own, and said that they were coming on well, and that they had learned it from him, and that they had better commend their souls to God because their bodies were Edward’s. He offered any man who wanted to go the chance to leave. Then he took the bishop’s blessing and rode up Green Hill into a thunderstorm.
It lasted a couple of hours and was not a battle so much as a slaughter. Edward had picked twelve men and told them to find Simon, kill him, and take no ransom, which broke every rule of war those men had been raised on. They killed his eldest son in front of him. They killed his horse under him and he fought on foot until they beat him down. Afterwards his body was hacked apart and the pieces sent about the country as trophies. A chronicler who lived through it wrote that it was the murder of Evesham.
The old king was on the field, dressed in his captors’ colours and half forgotten, and was nearly cut down by his own son’s knights before he pulled off his helmet and shouted that he was Henry of Winchester, their king, and they were not to kill him. Somebody recognised him and got him out.
What followed was two years of misery. Simon’s followers were stripped of their lands, which left them nothing to lose, and the fighting went on in the woods and the fens. Kenilworth Castle held out for six months. But Edward, who was ruthless and not at all stupid, worked out that hanging every rebel in England would not leave him a country worth ruling. In 1266 the disinherited were offered their lands back at a price they could pay, and in 1267 a parliament at Marlborough re-enacted the best of the reforms Simon had fought for. Four of its clauses are still on the statute book today, the oldest working law in the country.
The monks of Evesham buried what was left of the earl in their abbey church, and people began arriving at the grave. They came from all over England for fifteen years, and the monks wrote down every cure and every wonder reported there until the crown made it too dangerous to go on. He had been a hard man and a proud one, he had helped himself to a good deal of confiscated property, and he had let terrible things be done in his name. But the poor had understood him to be on their side, and they did not forget it.
Henry the Third died in November 1272, having reigned for fifty-six years, and was buried in the abbey he had spent his life rebuilding. He had been a bad king and an unlucky one, and the two things from his reign that still matter both came out of his failures.
In the meantime, his son was on his way home from crusade and took two years to arrive. Edward the First was everything his father was not, and he had personally destroyed the man who first thought of calling ordinary men to Westminster.
He used the idea anyway.
In November 1295, needing money for wars in Wales, Scotland and France at once, King Edward, Edward Longshanks, sent out writs summoning knights from every shire and burgesses from every borough, and the writ carried a line of old Roman law his clerks had dug out that has been quoted ever since. What touches all should be approved by all. He did not mean it as a principle of liberty. He meant that if he was going to tax the whole kingdom it was easier to have the whole kingdom in the room when he asked.
Two years later the sentence was taken out of his hands. By the autumn of 1297 he had taxed so hard and so often that his barons were armed, his clergy were refusing him and the wool trade was in revolt. To avoid another civil war he sealed a confirmation of the Charters, granting for himself and his heirs that he would take no such tax again except by the common assent of the realm.
That is the bargain the rest of this story turns on. The king had the crown, and the crown needed money, and the money now had a price, and the price was asking.
You can walk up Offham Hill above Lewes on a spring morning and look down on the town the way Simon’s men did, at the castle and the roofs and the river going out towards the sea. At Evesham the abbey is gone and only the bell tower is left standing in the grass, with a spring called Battle Well below the hill where the last of his knights were cut down. Nothing there tells you that anything had begun. But what had begun was that the king had to ask Parliament for money.
The next king but one, King Edward the Third, would want a great deal of money, and by then there was only one way to get it – to ask Parliament. He wanted the money for a war in France, and that war would begin with a claim to the French throne and lead, within ten years, to English archers standing in the mud at a place called Crécy.