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Lesson 1: For this lesson you will need the following pages on the website, Herleva of Falaise, Gilbert, Count of Brionne and Robert, Duke of Normandy. The purpose of this lesson is to show the links between Richard Fitz Gilbert and William the Conqueror. Richard's father, Gilbert, Count of Brionne, was the grandson of Richard the Fearless, Duke of Normandy.
There is some dispute about the identity of Richard's mother. While some historians believe the Richard was the result of a relationship between Gilbert, Count of Brionne and Herleva, others believe the evidence is unreliable. However, historians do agree that the four boys were brought up together and that Richard's father was killed while protecting William from Norman barons.
The other connection between the two families was that William the Conqueror married Matilda, the daughter of Baldwin of Flanders (Richard Fitz Gilbert's brother). It is said that the married couple looked strange together as William was nearly 6 feet tall while Matilda was only 4 feet 2 inches.
Some books call William's mother Arletta. As this was a nickname, I have kept to her original name of Herleva.
(Question 5) Gilbert was already married. It is not known for certain why Robert did not marry Herleva. Her humble background was obviously one reason. Robert also hoped to marry into another powerful family in Europe. Even so, some historians are surprised that Robert did not marry Herleva before he went on his pilgrimage to Jerusalem in 1034 (he died on his way home in 1035). He was obviously worried about not returning and he got his barons to promise they would accept his illegitimate son as leader if he died on the journey.
Lessons 2: An opportunity for an extended writing assignment on the Battle of Hastings. Pupils will need H1 Arms and Armour, H2 Accounts of the Battle, H3 The Battle of Hastings, H4 English & Norman Historians, H5 Norman Victory and the H6 Map of the Battlefield.
Initially the task will probably appear to be difficult for Year 7 pupils. However, the exercise is highly structured and we were very pleased with the standard of work that the pupils achieved. We spent the first lesson reading and discussing the materials. The written work was completed in lessons three and four.
William's ship 'Mora' was larger and faster than the other Norman ships. William of Poitiers claims that 'Mora' arrived on the English coast several hours before the others. Only two ships were lost. One landed at Romney and all the Normans on board were killed by local people. The other ship sunk on the journey. This ship contained the expedition's soothsayer. William was said not to be too upset by the loss of his soothsayer as the man had failed to predict his own death.
William of Poitiers claims that William had 3,000 ships and an army of 50,000 "volunteers". Historians now believe it was about 450 ships, 8,000 men and 2,000 horses.
I have used the term 'Battle of Hastings' even though it is geographically incorrect - the battlefield was 10 kilometres from Hastings. Early historians such as Orderic Vitalis always referred to it as the 'Battle of Senlac Hill'. William of Poitiers suggests that the English army easily outnumbered the Normans. This is incorrect. Modern historians believe that there were about 7,000 English soldiers at the battle. Only 1,000 of these were well-armed members of the 'housecarls'. William of Poitiers' account suggests that the Normans were particularly concerned with the English use of the long-handled battle-axe.
It has been claimed that several mistakes have been made concerning the appearance of the housecarls on the Bayeux Tapestry. For example, it does not show the long hair of the English soldiers and the long leather flaps attached to their helmets. Housecarls also wore sandals and had trousers with straps under the feet.
The battle lasted for eight hours. It has been estimated that William lost 30% of his men. The number of English soldiers killed was much higher. The Normans afterwards called the battle 'Sanguelac' (Blood Lake). William of Jumieges claims Harold was killed at the start of the battle. The author was unwilling to accept that Harold fought a long and brave fight. William of Poitiers on the other hand praised the bravery of Harold and his men. An example of two different types of Norman propaganda.
Lesson 3: You will need the information sheets Norman Castles and Tonbridge Castle. This lesson is only concerned with motte and bailey castles. The plan is to look at stone castles in later lessons. The drawing of the motte and bailey castle is based on archaeological evidence. The original motte and to a certain extent, the bailey, can still be seen at Tonbridge. The artist also made extensive use of the Norman motte and bailey castle at Dinan and Rennes that appear on the Bayeux Tapestry. Richard de Clare also built motte and bailey castles at Clare in Suffolk, Bletchingly in Surrey and Hanley in Worcestershire.
The information on Richard de Clare's castles and estates comes from the following books and articles: Michael Altschul, A Baronial Family in Medieval England: The Clares, 1217-1314 (John Hopkins Press, 1965), Gladys Thornton, History of Clare (Heffer, 1949). N. J. G. Pounds, The Medieval Castle (Cambridge, 1990). Jane Oliphant, Tonbridge Castle (Tonbridge, 1992), W. V. Dumbreck, The Lowry of Tonbridge (The Archaeolgia Cantiana: Volume 72, 1958) and Jennifer C. Ward, The Lowry of Tonbridge and the Lands of the Clare Family in Kent: 1066-1217 (The Archaeolgia Cantiana: Volume 96, 1980) and Edward Hasted, The History and Topographical Survey of Kent (Canterbury, 1798)
Lesson 4: For this lesson you will need the following: Feudal System, Feudalism Chart, and the Clare Estates in 1086. The main idea of the lesson is to give a concrete example of how the feudal system worked. In order to provide William with sixty knights, Richard de Clare had to find under-tenants like Roger de Abernon. Most of these knights had served under Richard de Clare at the Battle of Hastings. These knights often adopted coats of arms similar to their overlord. The chevron was a common feature on the arms of the knights controlled by Richard de Clare.
William was always worried about the possibility that his barons would try to overthrow him. He tended to grant land surrounding his base in London to his half-brothers, Odo of Bayeux, Robert of Mortain and Richard de Clare. However, he did not completely trust these men and so he did not give them complete power over any one area. Mixing manors up like this sometimes created conflict between the tenants-in-chief. For example, Richard de Clare and the Archbishop of Canterbury were constantly arguing over land in Kent. This is a problem that will be considered when we look at Thomas Becket.
The Domesday survey revealed just how much land Richard de Clare controlled. The land in East Anglia and Essex was
worth £591 3s. 6d. in 1086. He also had large estates in Kent (£109 12s. 5d.) and Surrey (£238 14s. Id.). Standon, was the only manor that the Clares held in Hertfordshire. It was also the only one held in his wife's name. Stigand, the previous owner of Standon, had been appointed Archbishop of Canterbury in 1052 and had played an important role in King Harold's coronation. After Harold's death in 1066, Stigand supported Edgar Etheling's claim to the throne. Stigand was captured by the Normans and forced to crown William king of England. Stigand was kept prisoner in Winchester until his death in 1072.
Lesson 5: You will need Richard Fitz Gilbert, William Rufus, William of Malmesbury, and Robert Curthose. As the two sources indicate, historians disagree about the Clare involvement in the death of William Rufus. As Barlow points out, there is no hard evidence that would prove the Clares guilty of this charge. H. Round, an expert on this period, was
convinced of their guilt. In his book Feudal England he provides a long list of the different ways that the Clare family benefited from the death of William Rufus. Round also interprets Henry's speed of action as proof that he knew that his brother was going to be murdered. He also points out that after he became king, Henry did not attempt to punish Walter Tirel for his actions.
Lesson 6: You will need Archbishop of Canterbury, Lanfranc and Thomas Becket for this lesson.
Lesson 7: You will need Henry II for this lesson.
(Q1) The right order was (d) The death of Henry I's son William; (b) The death of Henry I; (c) The Civil War between Stephen and Matilda; (a) The Treaty of Westminster. The death of William left Henry I without a legitimate male heir. When Henry I died, his daughter Matilda attempted to become England's new monarch. However, the Norman barons were divided on the issue and civil war broke out between the supporters of Matilda and Stephen. This civil war only ended with the signing of the Treaty of Westminster in 1153.
(Q2) (i) An opinion is a view or judgement formed about a particular matter. For example, Peter of Blois is expressing an opinion when he wrote: "I hardly dare say it, but I believe that in truth he took a delight in seeing what a fix he put us in." (ii) A fact is something that has actually happened. For example, Peter of Blois is expressing a fact when he wrote: "Many a time when the king was sleeping, a message would be passed from his chamber about a city or town he intended to go to."
(Q3) Gerald of Wales points out in source 2 that Henry II was involved in fighting wars "in remote and foreign lands". Source A shows that Henry controlled large areas of land in Europe.
(Q4) William of Newburgh lived during the reign of Henry II. He met several people who knew Henry II and his book is an important source of information about this period. The books of Gerald of Wales are some of the best sources that we have on Henry II's reign. Gerald of Wales worked for Henry for several years and was in a good position to make judgements about his achievements as king.
(Q5) Historians are interested when people wrote and published accounts of Henry II for several different reasons. This information might help the historian discover whether the writer was describing events he had actually witnessed. If the author wrote his account soon after the event had taken place, there is less chance of him making factual errors. However, if the accounts were written a long time after the event had taken place, the historian would want to know what sources the author had consulted before writing his account. If these authors wrote and published their accounts while Henry was still alive, it is possible they would have been too afraid of their king to say bad things about him.
(Q6) In source 6, Gerald of Wales claims that because of the expense of fighting so many wars Henry "drew into his own treasury... the revenues of the churches." Gerald also claims that Henry was so busy he "could scarcely spare an hour to
hear mass". Source 5 indicates that Henry liked to decide who should become the leaders of the Church. In the writ that he sent to those electing the Bishop of Winchester, Henry told them who they had to choose.
(Q7) One of the main reasons why the people wanted Henry to be king was that it provided an opportunity for the country to become united again. After the signing of the Treaty of Westminster, Henry had the support of both sides in the civil war. Gerald of Wales points out that Henry II brought peace to England. To maintain the peace between the two factions he allowed several of Stephen's officials to keep their government posts. Henry also arranged marriages between the two rival families. According to William of Newburgh, the laws of England became "dead and buried" during Stephen's reign. One of the ways Henry maintained the support of the English people was to make sure the laws of England were enforced fairly. In source 7, Peter of Blois argues that Henry was constantly inquiring what "everyone was doing, especially judges whom he made judges of others." Henry was a skilled military leader (source 2). This was important as under his rule, English people felt safe from foreign invasion.
Lesson 8: You will need Thomas Becket for this lesson.
(Q1) (i) Sources 2 and 5 both describe Thomas Becket when he was chancellor. It is important to remember that Henry II was a close friend of Becket when he was chancellor. Source 2 indicates that the two men were still friends at this point. Source 2 also illustrates Becket's fondness for fine clothes that he had when he was chancellor. Source 5 is a description of Thomas Becket as chancellor and army commander of Henry's troops. (ii) Source 1 contains a description of Becket wearing his hair-shirt. As chancellor Becket loved wearing fine clothes and it was only when he became archbishop that he started wearing a hair-shirt.
(Q2) Before he became archbishop of Canterbury, Thomas Becket had a reputation for being a cruel military commander and having expensive tastes in food, wine and clothes. Becket was also a close friend of Henry II. Many people claimed that Thomas Becket was the wrong man to lead the Church in England. Becket was determined to
show that his critics were wrong. He began to give away his money to the poor. Becket also changed his expensive clothes for a simple monastic habit. He also punished himself for the sins he committed while he was Henry's chancellor (he slept on a cold floor, wore a hairshirt and was scourged daily). Becket also showed that he was an independent leader of the church when he disagreed with Henry's policy on church courts.
(Q3) Sources 2 and 5 both describe Thomas Becket when he was chancellor. Source B indicates that the two men were still friends at this point. (Ii) Source 1 contains a description of Becket wearing his hair-shirt. As chancellor Becket loved wearing fine clothes and it was only when he became archbishop that he started wearing a hair-shirt.
(Q4) Henry was very concerned about the number of people who could demand to be tried by church courts rather than by his courts. As Henry made money from his courts, he had economic reasons for wanting to reduce the number of people appearing before church courts. Henry was also worried about the increase in serious crime. People found guilty in church courts suffered less severe punishment than in other courts. Henry believed that if he were able to punish clerics found guilty in church courts, it would deter other clerics from committing serious crimes in the future.
(Q5) (i) Source 5 claims that Becket was a cruel soldier ("He destroyed cities and towns, put manors and farms to the torch without a thought of pity".) Source 2 illustrates Becket's love of fine clothes and his unwillingness to help the poor. (Ii) Source 6 shows that Thomas Becket was interested in correcting any faults he might have had. He was aware that people were reluctant to openly criticise people with power. Source 1 illustrates Becket's willingness to punish himself for previous sins by wearing a hair-shirt.
In order to obtain an accurate and balanced picture of Becket it would be important for a historian to consult all these sources. For example, sources 1 and 6 help to show how Becket changed when he became archbishop of Canterbury.
(Q6) As close friends of Thomas Becket, William FitzStephen, Edward Grim and Herbert of Bosham were all able to write detailed accounts of his life. Historians always have to be careful about biographies written by friends of the subject. There is always the danger they will emphasis the subject's good points. They might also leave out bad things about the person. However, as you can see from sources 2 and 5, this is not always the case as Edward Grim and William FitzStephen were both willing to criticise Thomas Becket.
Lesson 9: You will need Archbishop of Canterbury, Lanfranc, Thomas Becket, Edward Grim, Drawing of the Cathedral and Kentish Manors in 1160. This lesson provides an opportunity for the more able student to look at primary sources in some depth. Edward Grim provides a very detailed account of the death of Thomas Becket. Although John of Salisbury, William Fitz Stephen, Benedict of Peterborough and William of Canterbury (who were also at the Cathedral at the time) disagree with Edward Grim about minor details, his account is judged by most historians to be very reliable.
The earls of Clare had a long drawn out dispute with the archbishops of Canterbury over the control of manors in Kent. As Kentish Manors in 1160 shows, the manors of these two landowners were very close together. Thomas Becket's dispute with Roger de Clare was primarily over the ownership of Tonbridge. Henry II intervened in the dispute and ruled in favour of Roger de Clare.
Lesson 10: You will need worksheet Pilgrimage, Pilgrimage to Canterbury and Norman Monasteries for this lesson. Roger de Clare, who was probably involved in Thomas Becket's death, is known to have visited Thomas Becket's tomb. He also believed that the tomb had miraculous healing powers. On two occasions, Roger and his wife Matilda, took their sickly son James, to the tomb. According to the Memorials of Thomas Becket, both times James was cured. However, James did not survive into adulthood.
On 11th July, 1337, there was a fire at the Priory of St Mary Magdalene in Tonbridge. The church, chapter-house, dormitory, refectory, library and the vestry were destroyed. So also was a large collection of books, documents, ornaments and relics. The Archbishop of Canterbury granted indulgences of 40 days to all those who agreed to assist the rebuilding of the priory. By the time the new priory had been completed a total of 8 years and 230 days of indulgences had been granted to those who had provided financial assistance.
(Q1) The pilgrim in the woodcut is wearing metal badges that have been stamped with the symbol of the shrine that he had visited. Pilgrims wore these badges on their hat so that people would know they had visited these holy places.
(Q2) People still go on pilgrimages to holy shrines today. For example, every year thousands of people visit places such as Lourdes in France. Many people go hoping to be cured from illness. The Church claims that since 1858, sixty-four miracles have taken place at Lourdes. People also buy badges at places like Lourdes. However, whereas in the Middle Ages they tended to put them on their hats, today they are more likely to put them on their cars. People still visit holy shrines in groups. However, unlike medieval pilgrims these people would be part of a group organised by a holiday tour company. Whereas people walked to holy shrines, today people go by coach, car, train and plane.
(Q3) It was fairly common in the Middle Ages for people to claim that they had a piece of the cross used to crucify Jesus Christ. As it was impossible to prove that these relics were genuine, most monasteries were suspicious of claims made by visitors. However, Brabham monastery appears to have been convinced that the relic was genuine. The monastery had a good reason for wanting to believe in the relic. Brabham monastery was very poor and the monks thought that if the relic did make miracles happen, it would solve their financial problems. Monasteries charged pilgrims to see relics, and so it was possible to make a lot of money this way.
Lesson 11: You will need King John, Magna Carta, Richard of Clare, Gilbert, 7th Earl de Clare, and Clare Manors in 1230 for this lesson. When Richard, sixth earl of Clare, died in 1217, his son Gilbert inherited his estates. Gilbert's mother Amicia, was the daughter of the Earl of Gloucester. The earl had no sons and so his estates were passed to his daughter. When Amicia Clare died in 1225, Gilbert inherited the estates and the title of the Earl of Gloucester. He also inherited the estates of his grandmother, Maud de St. Hilary. By 1230, Gilbert de Clare controlled 456 manors (only a selection of these manors are shown in Clare Manors in 1230) and had to supply the king with 260 knights. The disadvantages of military service was illustrated by his death in Brittany on 25th October, 1230.
(Q1) Source 1 argues that King John murdered Arthur of Brittany. Source 2 alleges that while King John was generous to foreigners he "stole from the English". Source 3 claims that King John was "unbalanced and unstable" and acted like a "lunatic".
(Q2) Sources A, B and C were all written by monks in abbeys and monasteries. As sources 5 and 6 both point out, monastic chroniclers were very hostile to King John because of his policies towards the Church. Maurice Ashley claims that the works of the monastic chroniclers "were largely compiled out of gossip and rumour directed against a monarch who had upset the Church".
(Q3) W. Stubbs claims that " John was the worst of all our kings" and that he did not have one "redeeming trait". However, Maurice Ashley finds several reasons to praise King John believing him to be: "an energetic administrator, a first-class general, a clever diplomat and a ruler who developed... English law and government."
One of the reasons that historians sometimes disagree is that they have consulted different sources. For example, maybe W. Stubbs relied too much on what the monastic chroniclers had to say about King John. It has to be remembered that W. Stubbs wrote his book over a hundred years ago. In recent years new sources about King John have been found. Some of these sources provide a more positive picture of King John. Other sources have provided information that raises doubts about some of the things that the monastic chroniclers said about him. These new sources have been consulted by Maurice Ashley and have enabled him to write a book that provides a more positive image of King John.
(Q4) The Magna Carta stated that in future people could not be imprisoned or outlawed without receiving a fair trial (XXXIX). It also attempted to stop people buying and selling justice (XL). Finally, the barons promised that they would only appoint "justices, constables, sheriffs, or bailiffs" who knew the law and meant "to observe it well" (XLV).
(Q5) (a) Widows gained two main benefits from the Magna Carta. The Magna Carta stated that widows "shall without difficulty have her inheritance" (VII) and could not be forced to remarry (VIII). Before 1215 kings of England could demand fees before widows received their inheritance. They could also force widows to remarry. Of course these changes were only important if you came from a rich family. Poor women gained nothing from these measures.
(b) Merchants made one important gain from the Magna Carta. Merchants would have been pleased that the Magna Carta provided protection for merchants who wanted to sell their goods abroad (XLI). However, merchants would have probably complained that they gained very little compared to the lords.
(c) The barons were mainly concerned with their rights and freedoms and only one clause in the Magna Carta refers to villeins (XX). This clause stated that villeins should "not be fined for slight offence... and for a grave offence he shall be fined in accordance with the gravity of the offence." While it is true villeins would have also benefited from other clauses such as XXIII, compared to the lords, they gained very little from the Magna Carta.
Lesson 12: You will need Simon de Montfort for this lesson.
(Q1) The student's timeline should have included the following: 1208: Simon de Montfort born in France; 1230: Simon arrives in England; 1248: Henry III puts Simon in charge of Gascony; 1258: Simon and the barons force Henry III to sign the Provisions of Oxford; 1264: Simon defeats Henry III at the Battle of Lewes; 1265: Simon killed at the Battle of Evesham.
(Q2) Soon after Simon de Montfort won victory at the Battle of Lewes he organised a new parliament. For the first time, representatives from the towns were invited to attend. The people who attended parliament also choose three men (Simon de Montfort, Earl of Gloucester and the Bishop of Chichester) to run the country. (Ii) After the death of Simon de Montfort power shifted back from parliament to the king. However, future kings realised that they could no longer ignore the views of ordinary people. From now on parliament was no longer just made up of lords (earls, barons, bishops and abbots) but also contained commoners. Simon de Montfort's reforms were therefore the beginning of the system of government that we use today.
(Q3) The writers of sources 1, 3 and 5 all supported Simon de Montfort. Source 1 claims that Simon "fought valiantly for the English people". Whereas Matthew Paris said that he defended "the poor from oppression". Source 3 argues that like Thomas Becket, Simon "would not allow the holy church to perish". However, the authors of sources 2 and 4 opposed Simon. Thomas Wykes claimed that "after having destroyed the strength of the lords" Simon planned to "subdue the people." The author of source 4 argued that Simon was guilty of treason.
There are several reasons why these writers might have disagreed about Simon de Montfort. For example, they may have had different views on who should govern England. Maybe Wykes was against commoners attending parliament. Opinions are often influenced by self-interest. It is possible that the authors of sources 1, 3 and 5 thought that Simon de Montfort's government would bring in policies that would benefit them. Another reason that writers disagree is that they have consulted different sources. For example, most of the sources that Matthew Paris studied might have said good things about Simon de Montfort.
Lesson 13: You will need Norman Castles, Tonbridge Castle, Feudal System, Clare Estates in 1086, William Rufus, Magna Carta, Castles: Glossary and Barons and the Monarchy for this lesson. It should take them about two hours to complete. It is also an opportunity to look at two key areas of the 'Medieval Realms' course: "relations of the monarchy with the barons" and "the involvement of English monarchs in Ireland, Scotland and Wales'.
Richard de Clare (Strongbow) was the only son of Gilbert de Clare, 1st Earl of Pembroke. King Stephen had granted Gilbert the title in 1138. Gilbert was the younger brother of Richard de Clare, 3rd Earl of Clare. Strongbow arrived in Waterford in May, 1170 with about 1,500 men. Waterford fell to Strongbow in two days. The marriage between Strongbow and Eva took place straight away. Strongbow's army then marched to Dublin. The city fell before Roderic of Connacht could organise his forces.
The Clares were able to hold on to their territory in Ireland without too much difficulty. The main problem came in 1293 when the Irish in Kilkenny revolted. Gilbert the Red was forced to sail with a large body of knights to pacify the region. He arrived in Ireland in October 1293 and left in April, 1294. The castles owned by the Clare family in Wales required a large number of people to look after them. In 1262 there were 52 people housed in Neath castle, including the constable, 12 foot soldiers, a chaplain, the cook, a laundress and other servants, and a number of grooms. There were 28 people in Llangynwyd, 42 at Llantrisant and 20 in Cardiff.
The largest Clare castle in Wales was at Caerphilly. The Romans had originally built a fort at Caerphilly in about A.D. 75 but this was abandoned in the second century. After Gilbert de Clare established control over the Vale of Glamorgan in 1268 he began the rebuilding of Caerphilly Castle. Nearly all the castle was built within the next three years. Caerphilly is the earliest and finest example of a concentric castle in Britain. What is so surprising is that it was built by a 25 year old earl and not the king of England.
The castle was built on a narrow strip of gravel between the marshy valleys of two streams. Gilbert de Clare's engineers cut ditches across the gravel to create three islands. The castle was then built on the central island. The Nant y Gledyr stream was dammed to create a huge lake around the outside of the castle.
After Edward's successful campaign against the Welsh (1282-83), Caerphilly was no longer important as a frontier fortress and was mainly used by the Clares as a centre of administration. There was an attempt by Morgan ap Maredudd in 1295 to capture Caerphilly and although the town was badly damaged, the Welsh rebels were unable to take the castle.
Caerphilly Castle was- always well stocked in case of an emergency. An inventory taken in 1327 revealed 112 quarters of corn, 110 quarters of beans, 78 carcasses of oxen and 40 of mutton, 72 hams and 1,856 stockfish. The castle also contained £13,000 packed in 26 barrels and a collection of 600 silver vessels.
Wales was a source of great profit for the Clare family. Sources of income included rents, mills, court fees and the sale of grain, animals and wood. The Clares also owned silver, lead and iron mines in Glamorgan. In 1317, the total income for the Glamorgan estates was almost £1,275 and Gwynllwg £460. Usk and Caerleon were valued at some £750 whereas Cardiff brought in £113. A close inspection of the Clare accounts reveals that Wales was responsible for about a third of the family income.
Lesson 14: You will need Bannockburn for this lesson.
(Q1) The author of source 4 is expressing an opinion when he claims that "many nobles and knights... were too showy and pompous" and "the wicked party lost and the cunning one conquered."
(Q2) The monk of Malmesbury (source 1) claims that Edward II's army was the largest that ever left England. However, other than stating that there were over 2,000 knights in the cavalry, the author gives no other details. In his speech before
the battle (source 3), Robert Bruce is quoted as saying that his soldiers would need to kill 45,000 men if they were to win victory. In his book The History of Greater Britain, John Major argues that the Scots actually killed 50,000 during the battle. Other sources suggest that there was only about 20, 000 soldiers in the English army. Even so, this was still far larger than the estimated 5,500 soldiers who made up Robert Bruce's army.
(Q3) There are several possible reasons why Robert Bruce's outnumbered army was able to defeat the English at Bannockbum. The main reason was that Robert Bruce was able to chose the site where the battle took place. The English were forced to advance on a narrow front between marshland and thick wood. As a result, the English soldiers at the back were unable to reach the Scottish lines. With the two sides locked together it was difficult for the English archers to hit their intended targets.
There is also evidence that the Scottish soldiers were more highly motivated than the English. As Robert Bruce pointed out in his speech before the battle: "Our enemies are moved only by desire for domination but we are fighting for our lives, our children, our wives and the freedom of our country" (source 5).
A large proportion of the English army were foreign mercenaries who were fighting for money rather than for their freedom (source 3). Source 4 is also critical of the attitude of some members of the English army: "There were in the English army many nobles and knights who were too showy and pompous... when the two sides engaged, the Scots remained firm, but the English fled."
Lesson 15: You will need Robert Bruce for this lesson.
(Q1) John Fordun and John Barbour were both supporters of Robert Bruce. In both accounts they stress the fighting abilities of Robert Bruce. John Fordun even claims that Robert Bruce had God on his side. Fordun and Barbour were both Scottish priests who strongly opposed the attempts by the English to conquer Scotland.
(Q2) Source 4 illustrates how Robert Bruce used hit and run tactics against the English. As the Monk from Malmesbury points out, "Robert Bruce... unequal to the King of England in strength, decided that it would be better to resist our King by secret warfare rather than in open battle." Source 5 shows how Robert Bruce tried to recruit the support of the Irish in his fight with the English. He also wrote similar letters to the people of Wales.
(Q3) Edward would have been upset when he heard that Robert Bruce had destroyed his power in Scotland. He would also have been concerned when he heard that "the Scottish people firmly believe that Robert Bruce will win." Edward realised that people are more likely to fight for a leader they believe is going to be victorious. Edward would also have been very worried that the Scottish preachers were supporting Robert Bruce. Religious people are more likely to fight if they believe that God is on their side. Edward would also have been worried that these preachers might persuade England's Welsh mercenaries to change sides.
Lesson 16: You will need Castles: Glossary, Caerphilly Castle, Origins of Parliament, Battle of Lewes, Gilbert the Red, Bannockburn, Clares in Ireland, Clares in Wales, Edward II and the Clare Sisters and Clare Family: Extended Writing for this lesson.
After the death of Gilbert the Red, King Edward decided to look round for another husband for his daughter. In March 1297, Edward announced that Joan of Acre was to marry his cousin and ally, Amadeus V, Count of Savoy. Joan however had fallen in love with Ralph de Monthermer, a young knight with very little land. The two married in secret. When the king heard the news he imprisoned Ralph in Bristol Castle. The king eventually relented and released Ralph and allowed him to manage the Clare estates until Joan's death in 1307.
The Clare Sisters provides a good example of how women from rich families were treated in the 14th century. If women were likely to inherit large estates it was very important for the king that they should marry men who were loyal subjects. However, knights did not always remain loyal to their king. In 1322, Hugh de Audley and Roger Damory joined Thomas, Earl of Lancaster in his struggle with Edward II. Audley surrendered to Edward just before the Battle of Boroughbridge on 17 March 1322. Damory fought against the king and after being captured was executed for treason. After a period in prison Hugh de Audley was released and allowed to keep his estates.
Marriages were often arranged when the girls were only three of four years old. The law stated at the time that a girl as young as seven was capable of consenting to marriage. However, the marriage could not be consummated until the girl was 12 years old (boys had to be fourteen).
Elizabeth and Eleanor de Clare were both victims of rape and abduction. Rape was a criminal act and by law a rapist could be blinded, castrated or executed. Rich and powerful men were rarely punished in this way. Loyal knights often sought permission from their king before abducting and raping a rich heiress. This was a convenient way for the king to make sure that the estates were under the control of one of his supporters.
Court records reveal that rape committed by nobles was usually punished by a monetary fine. If the man was willing to marry the victim the judge would often pardon the rapist. As marriage was generally the motive behind the rape, the accused man was likely to find this judgement acceptable. In the 14th century courts were unwilling to convict rapists when the victim was pregnant. It was generally believed that her pregnancy signalled God's approval of the marriage. A detailed account of these issues can be found in The History of English Law: Volume II by Frederick Pollock and Frederick Maitland (Cambridge, 1911).
The kidnapping and forced marriage of Elizabeth to Theobald Verdun would have caused considerable anger in the Clare family. These two families had been in conflict for a considerable period of time. In 1291, Theobald's father, Lord Verdun, had been imprisoned over a land dispute with Gilbert de Clare. The kidnap of Elizabeth would have enabled Theobald Verdun to win back the land that had been lost by his father. By the time of the abduction in February, 1316, Theobald Verdun was fairly confident that Edward II would not take action against him. Verdun had proved himself a loyal knight and had fought bravely in Edward's Scottish campaigns.
Exploring Arthurian Legend
1) Work in groups to annotate these timelines by adding non-Arthurian events with which you may be already familiar (e.g., the reign of Charlemagne, the Norman Conquest, the signing of the Magna Carta, the Crusades). You can also use the following maps to contextualize Medieval geography. Print out the three maps—Medieval Cities, Physical Geography, and Regional Names—from the Medieval Sourcebook Medieval Map Quiz. Work with a partner to complete the three maps.
2) Consider these two early accounts of Arthur:
- A short extract from De Excidio Britanniae by the 6th-century British monk Gildas
- A brief extract from Historia Brittonum, by the 9th-century British historian Nennius, where Arthur is already passing into legend (see in particular Chapter 56)
- What does Arthur seem to stand for in these narratives?
- What can we infer about the societies in which these historians lived from the ways they present Arthur and his actions?
3) Using the following websites, research important figures or themes—such as feudal loyalty, courtly love, chivalry, the Holy Grail—in Arthurian legends and romances. Your teacher may direct you to consult other resources as well.
4) Read the poem and consider the following questions:
- What happens in the poem? Describe the setting, list the characters, and summarize the action.
- Examine the form of the poem. Describe the stanza pattern. How many lines are in each stanza? What is the rhyme scheme of each stanza? What is the metric structure of each stanza? Why is the poem divided into sections?
- How does Tennyson use repetition in the poem? To what effect?
- Who is the main character in the poem? How do we know? Why she is not named in this version of the story?
- Scholars have suggested that this poem, like many of the versions of the Arthurian legends, is more than another retelling of the same old story. The Lady represents the artist, high above ordinary life, practicing her art and observing life but never mixing in it directly. When she is drawn into real life, her art is destroyed and she dies. Relate this reading of the story to other possible interpretations of the story. What does this interpretation of the story tell us about Victorian views of art and artists?
5) Consider the following questions while exploring the different versions of the Lancelot and Elaine story:
In the U.S, Praise for Anglo-Saxon Heritage has Always Been about White Supremacy
L.D. Burnett is a historian of American thought and culture. Her book-in-progress on Western Civilization and the culture wars in higher education is under contract with University of North Carolina Press. Burnett also edits The Mudsill, a twice-monthly little magazine of commentary, criticism and creative work.
On April 16, the news broke that Trump loyalists in the House were planning to form an &ldquoAmerica First&rdquo caucus to defend the nation&rsquos purported &ldquouniquely Anglo-Saxon political traditions.&rdquo The news sparked immediate widespread condemnation from activists, scholars and even other Republican politicians &mdash so much so that plans for the caucus have been scrapped.
The term &ldquoAnglo-Saxon&rdquo does some heavy lifting in the memo laying out the planned caucus&rsquos creed, particularly because it appeared in the section on immigration policy implying that only some people are capable of appreciating, embracing or defending American ideas of self-governance. But anyone can hold ideas. If immigration imperils &ldquoAnglo-Saxon&rdquo traditions in the view of the memo&rsquos authors, that could only be because they view those traditions not as abstract concepts but as heritable characteristics, not as political principles but as a particular reimagined ethnicity handed down from one&rsquos ancestors.
And this sinister use of Anglo-Saxonism is nothing new. Beginning in the 19th century, mentions of &ldquoAnglo-Saxon&rdquo heritage, including invocations of Anglo-Saxon political traditions, ceased to have even an imagined grounding in supposed traditions of self-governance in Britain before the Norman conquest. Instead, mentions of Anglo-Saxon tradition and Anglo-Saxon blood commingled in the early 19th century to signify the purported racial and intellectual superiority of White Americans. This superiority not only entitled them to rule, but actually destined them to conquer and occupy the whole continent of North America after forcefully subduing all other races.
Britain’s colonial crimes deserve a lasting memorial. Here’s why
T he trouble with the English, remarked Salman Rushdie in typically apt fashion, is that they don’t know their history, because so much of it happened overseas. And so the island status that motivated Britain’s imperial story in the first place has helped us distance ourselves from all aspects of that story.
There is the way, for instance, that the empire was built and sustained. From the Norman conquest of Ireland in the 12th century, the English began imagining themselves as the new Romans, persuading themselves they were as duty-bound to civilise “backward” tribes as they were destined to exploit their resources, land and labour.
There is the way the empire ended – a gentlemanly release, far less violent and disruptive than the dissolution of France’s dominions, or so the self-congratulatory theory goes. “There is only one empire where, without external pressure or weariness at the burden of ruling, the ruling people has voluntarily surrendered its hegemony over subject peoples and has given them their freedom,” said Clement Attlee in 1960, neatly summarising this belief.
It’s an ingenious and uniquely British perspective, which achieves the seemingly impossible – casting Britain’s empire as a great moral achievement, and its collapse as an act of casual generosity, without any hint at the irreconcilability of the two. The British empire was won, as the historian John Seeley famously claimed, “in a fit of absence of mind”, and given away in a fit of collective indifference.
Lost in all this are inconvenient facts too numerous to list in anything other than the most cursory way. There are the centuries of state-sanctioned criminal activity: the remarkable looting by supposed heroes such as Francis Drake, one of the most notorious pirates in history, and Robert Clive, who pillaged Bengal to great personal gain. There are the crimes against humanity: the innovation of concentration camps in the Boer war that inspired the Nazis, for example, and the cultural annihilation of kingdoms and palaces from Ashanti to Beijing.
David Adjaye, architect of Britain’s planned Holocaust museum in London. Photograph: Balkis Press/ABACA/PA Images
There is the industrial-scale exploitation of natural resources, enriching the imperial motherland to the same extent they underdeveloped wealth from the colonies, as Walter Rodney pointed out. And then there’s the slave trade that was enthusiastically embraced by Brits of all classes and backgrounds – the greatest manmade human calamity of all time.
Our preferred solution to this inconvenient truth has been to avoid dwelling on slavery and focus instead on celebrating its abolition. At least Britain’s role in the slave trade is remembered in the excellent museum in Liverpool. But having a couple of slavery-focused museums – there is Wilberforce House in Hull, too – sets the issue apart from the mainstream of British history. It’s like a physical version of Black History Month, forcing forgotten histories into the open – a good thing – but as a footnote, a segregated narrative.
Few British people understand how fundamental this trade was to the British empire, and the extent to which the history of empire is the history of Britain. That there is not a single museum dedicated to empire, the historical episode with the most profound consequences for modern British identity, is nothing short of remarkable.
The announcement of a new Holocaust museum, designed by the renowned British-Ghanaian architect David Adjaye, illustrates the crucial role museums can play in shaping understanding of the past and present. This museum, dedicated to “the complexity of the Holocaust story, including the British context . a series of layers that have become hidden by time”, will – quite rightly – take pride of place in Westminster, on the bank of the Thames next to the Houses of Parliament.
Both the fact of the new museum’s existence and its location serve, as Peter Bazalgette, chair of the UK Holocaust Memorial Foundation, has said, “as a statement of our values and a constant reminder of the British connection to this history, much of which we can be proud, but also a reminder of where we fell short, with tragic consequences”.
This is needed now more than ever. Why do we not afford the history of empire the same attention and symbolic value? We are not alone in neglecting it. America only gained its first ever federally funded museum of African-American History and Culture in 2016, also designed by Adjaye, who has described it as the defining project of his career. It’s astonishing that only now does the nation have a museum dedicated to the devastating history of its African-American community – on whose backs, there is a gradual but growing recognition, it was built.
‘View of Calcutta from the Esplanade’, c1860, during the period of East India Company rule. Illustration from The History of the Indian Mutiny, by Charles Ball, Volume II, The London Printing & Publishing Co. Photograph: Print Collector/Getty Images
Neither Adjaye nor any other celebrated architect has been asked to build a museum to Britain’s history of empire. The only such place to have existed in my lifetime was a privately operated museum in Bristol, which closed in 2008 to relocate to London, never to surface again.
This national neglect of our imperial past has attracted some strange bedfellows. A pro-Brexit historian recently told me that one of the consequences of Britain’s fatally flawed attempt to integrate more closely with the continent is an academic obsession with European history. He argued that the heads of history at eminent universities have been Germanists, and school curriculums have been obsessed with events in 20th-century Europe. We began to reimagine our history as solely continental, and not the global – and colonial – past it undoubtedly was.
The Astonishing Bayeux Tapestry Depicts the Norman Conquest over England
The Bayeux Tapestry is a medieval textile that dates from the 11th century and depicts the Norman Conquest over England.
But what was its purpose and significance, besides simply being a pictorial chronology of historic events?
Measuring an astonishing 231 feet (70m) long and 19.5 inches (49.5cm) high, the tapestry is actually an embroidered cloth and not a tapestry per se.
It is embroidered with crewel or worsteds (a high-quality wool yarn) in only eight colors, with 75 individual scenes.
Bayeux Tapestry, depicting ships coming in and horses landing.
Playing out much like a modern comic book, each scene includes Latin inscriptions, or tituli, which describe the events leading up to the famous Battle of Hastings on October 14, 1066.
The panels would have been produced separately in nine easier to manage sections and were then stitched together to form one long unit. While the first reference to the extraordinary work doesn’t appear until 1476, the tapestry is believed to date from the 1070s, and was completed in time for display at the dedication of the newly finished Bayeux Cathedral in France in 1077.
A segment of the Bayeux Tapestry depicting Odo, Bishop of Bayeux, rallying Duke William’s troops during the Battle of Hastings in 1066.
Believed to have been commissioned either by William the Conqueror’s half-brother, Bishop Odo, or Queen Matilda, his wife, the cloth is known in France as “La Tapisserie de la Reine Mathilde.”
It is likely that the design and fabrication was done in England by Anglo-Saxon embroiderers, who were probably all women. There are suggestions of Anglo-Saxon dialect in the Latin text, and the vegetable dyes used in the worsted can be found in cloth traditionally associated with England.
Howard B. Clark, author and director of The Medieval Trust, has suggested that the designer of the tapestry may have been the Abbot of St. Augustine’s Abbey in Canterbury, since he had previously held a position as head of the scriptorium at Mont-Saint-Michel, which is well known for its illuminated manuscripts. The Mont also featured in a scene in the tapestry itself.
The scenes are embroidered using two methods: a straight stitch for outlining and for lettering, and a stitch called couching, or laid work, for filling in the figures. The design of the work features a wide central zone – the main content – with narrower borders along the top and bottom.
The Bayeux Tapestry, chronicling the English/Norman battle in 1066 which led to the Norman Conquest.
The eight colors used are natural: terracotta, blue-green, dull gold, blue, and olive green, as well as dark blue, sage green, and black.
The action of the tapestry occurs in its central area where scenes are separated by beautifully rendered trees. It is here that we see images like the death of Edward the Confessor in January 1066, which provided the catalyst for the Norman Conquest.
Edward the Confessor sends Harold to Normandy.
Events continue through Harold Godwinson being crowned King of England (despite having previously pledged loyalty to William Duke of Normandy, later the Conqueror, although what exact promises were made we do not know), to the Normans leaving France and marching on Hastings.
This is, of course, a simplified version the tapestry features many interesting and intricate scenes. It is, instead of being a depiction simply of the Battle of Hastings, a portrayal of life in pre-Norman England, as well as a political commentary on events that led up to the famous battle.
Scene from the Bayeux Tapestry depicting mounted Norman soldiers attacking Anglo-Saxons who are fighting on foot in a shield wall
The details in the embroidery and its scenes are extraordinary. As Sylvette Lemagnen stated in her 2005 book La Tapisserie de Bayeux: “The Bayeux tapestry is one of the supreme achievements of the Norman Romanesque…Its survival almost intact over nine centuries is little short of miraculous … Its exceptional length, the harmony and freshness of its colours, its exquisite workmanship, and the genius of its guiding spirit combine to make it endlessly fascinating.”
Montfaucon / Benoît drawing showing Harold’s death
Scenes are varied and include such things as soldiers burning a house, a woman holding a boy’s hand as they flee or beg for mercy horses being loaded on to ships, the fear in their eyes evident meals being cooked and served and even Haley’s Comet.
The tapestry also offers images of both Anglo-Saxon and Norman armor and weapons, including the differences between English and Norman shields, the use of archers and, interestingly, stirrups. Indeed, military historians have used the tapestry to learn more about the specific armaments carried by both sides, as well as techniques employed during the battle.
Battle of Hastings. Photo by Dan Koehl CC BY-SA 3.0
The Latin text provides the viewer with a running commentary on events and what is happening, as well as a “who’s who” throughout the piece.
The text is brief but provides enough information to figure out what is occurring in each scene. The text uses many abbreviations — not uncommon in Latin — and personal names are not Latinised, nor are place names, showing an English influence in several areas, which again leads to the notion that the tapestry was embroidered in England.
Harold’s death. Legend above: Harold rex interfectus est, “King Harold is killed”
The tapestry culminates with Harold famously taking an arrow to the eye and dying on the battlefield. The English retreated, having been routed, and the Normans declared victory, both on the field and over Anglo-Saxon Britain.
The end of the tapestry, however, is missing or was never completed. French historian Lucien Musset suggested that the last panel that we see today was added around 1814, when anti-English sentiment was high in France.
Sections of the 1066 Medieval Mosaic re-creation in New Zealand.
The Bayeux Tapestry is an extraordinary work, not only for its overall age, excellent condition, and depiction of the Battle of Hastings, but also as a primary source for Anglo-Saxon and Anglo-Norman society, culture, and history.
It was on display in Bayeux Cathedral when it was initially finished and stayed there from 1476 onwards, although its whereabouts in between are unknown. Today, the tapestry resides permanently in its own museum in Bayeux, a short distance from the cathedral in which it made is debut.
It is scheduled to leave France in 2022, however, while the museum undergoes refurbishment and will return to the UK for the first time in almost 950 years to go on display at an as yet undisclosed location.
Book Review: The Whiggish View of History
William Hogarth’s ‘The March of the Guards to Finchley’ (1750).
In Evelyn Waugh’s novel “A Handful of Dust” (1934), Lady Brenda Last remarks of her husband’s beloved ancestral home, Hetton Abbey: “I detest it . . . at least I don’t mean that really, but I do wish sometimes that it wasn’t all, every bit of it, so appallingly ugly.” Her husband, Tony Last, will do anything to keep up the old ways. Though lacking any semblance of religious feeling, he dutifully attends the village church every Sunday and sits in the pine pew that his great-grandfather installed there generations ago. While Tony is fussing over his neo-Gothic pile, Brenda takes a flat in London “with limitless hot water and every transatlantic refinement.”
These two figures represent opposite strains of the approach of the English to their own history: One, the Tory disposition, is backward-looking, full of reverence for authority and the shared continuities that the past provides the other is forward-looking, ever conscious of the seemingly steady march of progress—the Whig view. The two strains were well in evidence in the 18th century, the so-called Georgian era in which differing versions of English self-definition jostled for ascendancy.
In “Charting the Past,” the prolific British historian Jeremy Black aims to examine the ways in which 18th-century English writers and thinkers studied their country’s past and, often, formed narratives to serve their own ends or special causes. It’s a broad remit, but Mr. Black manages it deftly, collating an impressive range of sources to tease out a larger theme: Though English historians might fall into the camp of Tory or Whig, nearly all saw history as full of lessons for their present.
To take one rather fanciful example, the anonymous pamphlet “Letter From a Gentleman in Worcestershire to a Member of the Parliament” (1727) invoked the ninth-century Viking invasions to urge the importance of fending off a Russian-led invasion from Norway–Denmark. Other lessons were more explicitly political. The Whig historian (and member of Parliament) George Lyttelton in 1735, touted the idea of an “ancient constitution” that had originated with the Saxons, survived the Norman Conquest and continued on in common law as England’s guarantor of freedom from tyranny—that is, in his view, freedom from the divine-right absolutism of the Tories. Meanwhile the Toryish Mary Astell could argue by analogy for a strong contemporary monarchy in 1704 by maintaining that “there were many causes that contributed to the felicity of Q. Elizabeth’s reign, but her magnanimous resolution and stout exertion of her just authority, were none the least of it.”
Of course, there were plenty of exemplars closer at hand—specifically, from the previous century. As Mr. Black shows, the debates playing out in 18th-century history books often concerned the squabbles surrounding the competing claims of legitimacy of the deposed Stuarts and the now-regnant Hanoverians. History now shows us that the accession of the staunchly Protestant William and Mary in 1689, replacing the Catholic James II, ensured that a Catholic would not again sit on England’s throne. But the threat (or thrilling prospect) of Catholicism was rarely far from the minds of English historians. To some, the suppression of the Jacobite uprisings of 1715 and 1745—aimed at restoring the Stuarts by installing the descendants of James II—suggested that the “papists” were defeated and would not menace England again. But to others, the uprisings meant that the Catholic threat would be ever-present. Bishop Lavington of Exeter—in a tract called “The Enthusiasm of Methodists and Papists Compar’d” (1749)—even argued that Methodists were crypto-papists.
How the English Failed to Stamp Out the Scots Language
Over the past few decades, as efforts to save endangered languages have become governmental policy in the Netherlands (Frisian), Slovakia (Rusyn) and New Zealand (Maori), among many others, Scotland is in an unusual situation. A language known as Scottish Gaelic has become the figurehead for minority languages in Scotland. This is sensible it is a very old and very distinctive language (it has three distinct r sounds!), and in 2011 the national census determined that fewer than 60,000 people speak it, making it a worthy target for preservation.
But there is another minority language in Scotland, one that is commonly dismissed. It’s called Scots, and it’s sometimes referred to as a joke, a weirdly spelled and -accented local variety of English. Is it a language or a dialect? “The BBC has a lot of lazy people who don’t read the books or keep up with Scottish culture and keep asking me that stupid question,” says Billy Kay, a language activist and author of Scots: The Mither Tongue. Kay says these days he simply refuses to even answer whether Scots is a language or a dialect.
What Scots really is is a fascinating centuries-old Germanic language that happens to be one of the most widely spoken minority native languages, by national percentage of speakers, in the world. You may not have heard of it, but the story of Scots is a story of linguistic imperialism done most effectively, a method of stamping out a country’s independence, and also, unexpectedly, an optimistic story of survival. Scots has faced every pressure a language can face, and yet it’s not only still here—it’s growing.
A 19th-century map of the British isles. Public Domain
Scots arrived in what is now Scotland sometime around the sixth century. Before then, Scotland wasn’t called Scotland, and wasn’t unified in any real way, least of all linguistically. It was less a kingdom than an area encompassing several different kingdoms, each of which would have thought itself sovereign—the Picts, the Gaels, the Britons, even some Norsemen. In the northern reaches, including the island chains of the Orkneys and the Shetlands, a version of Norwegian was spoken. In the west, it was a Gaelic language, related to Irish Gaelic. In the southwest, the people spoke a Brythonic language, in the same family as Welsh. The northeasterners spoke Pictish, which is one of the great mysterious extinct languages of Europe nobody really knows anything about what it was.
The Anglian people, who were Germanic, started moving northward through England from the end of the Roman Empire’s influence in England in the fourth century. By the sixth, they started moving up through the northern reaches of England and into the southern parts of Scotland. Scotland and England always had a pretty firm border, with some forbidding hills and land separating the two parts of the island. But the Anglians came through, and as they had in England, began to spread a version of their own Germanic language throughout southern Scotland.
There was no differentiation between the language spoken in Scotland and England at the time the Scots called their language “Inglis” for almost a thousand years. But the first major break between what is now Scots and what is now English came with the Norman Conquest in the mid-11th century, when the Norman French invaded England. If you talk to anyone about the history of the English language, they’ll point to the Norman Conquest as a huge turning point people from England have sometimes described this to me, in true English fashion, as the time when the French screwed everything up.
A quote from poet Robert Fergusson engraved into the sidewalk in Edinburgh. Timothy Aikman/Alamy
Norman French began to change English in England, altering spellings and pronunciations and tenses. But the Normans never bothered to cross the border and formally invade Scotland, so Scots never incorporated all that Norman stuff. It would have been a pretty tough trip over land, and the Normans may not have viewed Scotland as a valuable enough prize. Scotland was always poorer than England, which had a robust taxation system and thus an awful lot of money for the taking.
“When the languages started to diverge, Scots preserved a lot of old English sounds and words that died out in standard English,” says Kay. Scots is, in a lot of ways, a preserved pre-Conquest Germanic language. Guttural sounds in words like fecht (“fight”) and necht (“night”) remained in Scots, but not in English.
Over the next few centuries, Scots, which was the language of the southern Scottish people, began to creep north while Scottish Gaelic, the language of the north, retreated. By about 1500, Scots was the lingua franca of Scotland. The king spoke Scots. Records were kept in Scots. Some other languages remained, but Scots was by far the most important.
James VI came to power as the king of Scotland in 1567, but was related to Elizabeth I, ruling queen of England. When Elizabeth died, James became king of both Scotland and England in 1603, formally joining the two nations for the first time. (His name also changed, becoming James I.) He moved to London,* and, in a great tradition of Scotsmen denigrating their home country, referred to his move as trading “a stony couch for a deep feather bed.”
Scottish power was wildly diminished. The country’s poets and playwrights moved to London to scare up some patronage that no longer existed in Edinburgh. English became the language of power, spoken by the ambitious and noble. When the Reformation came, swapping in Protestantism for Catholicism in both England and Scotland, a mass-printed bible was widely available—but only in English. English had become not only the language of power, but also the language of divinity. “It’s quite a good move if you’re wanting your language to be considered better,” says Michael Hance, the director of the Scots Language Centre.
King James I of England and VI of Scotland, by John De Critz the Elder. GL Archive/Alamy
At this point it’s probably worth talking about what Scots is, and not just how it got here. Scots is a Germanic language, closely related to English but not really mutually comprehensible. There are several mutually comprehensible dialects of Scots, the same way there are mutually comprehensible dialects of English. Sometimes people will identify as speaking one of those Scots dialects—Doric, Ulster, Shetlandic. Listening to Scots spoken, as a native English speaker, you almost feel like you can get it for a sentence or two, and then you’ll have no idea what’s being said for another few sentences, and then you’ll sort of understand part of it again. Written, it’s a bit easier, as the sentence structure is broadly similar and much of the vocabulary is shared, if usually altered in spelling. The two languages are about as similar as Spanish and Portuguese, or Norwegian and Danish*.
Modern Scots is more German-like than English, with a lot of guttural -ch sounds. The English word “enough,” for example, is aneuch in Scots, with that hard German throat-clearing -ch sound. The old Norwegian influence can be seen in the converting of softer -ch sounds to hard -k sounds “church” becomes kirk. Most of the vowel sounds are shifted in some way “house” is pronounced (and spelled) hoose. Plurals are different, in that units of measurement are not pluralized (twa pund for “two pounds”) and there are some exception forms that don’t exist in English. There are many more diminutives in Scots than in English. The article “the” is used in places English would never use it, like in front of days of the week.
Almost everything is spelled slightly differently between Scots and English. This has caused some to see, just for example, the Scots language Wikipedia as just a bunch of weird translations of the Scottish English accent. “Joke project. Funny for a few minutes, but inappropriate use of resources,” wrote one Wikipedia editor on a Wikipedia comments page.
The view from Edinburgh Castle, 1890s. Library of Congress/LC-DIG-ppmsc-07583
That editor’s suggestion to shut the Scots Wikipedia down was immediately rejected, with many Scots speakers jumping into the fight. But it’s not really that different from the way the ruling English powers treated the language.
There are, generally, two ways for a ruling power to change the way a minority population speaks. The first happened in, for example, Catalonia and Ireland: the ruling power violently banned any use of the local language, and sent literal military troops in to change place names and ensure everyone was speaking the language those in power wanted them to speak. This is, historically, an extremely bad and short-sighted strategy. This sort of blunt action immediately signifies that these minority languages are both something to fight for and a unifying force among a population. That usually results in outright warfare and underground systems to preserve the language.
What England did to Scotland was probably unintentional, but ended up being much more successful as a colonization technique in the long run. The English didn’t police the way the Scottish people spoke they simply allowed English to be seen as the language of prestige, and offered to help anyone who wanted to better themselves learn how to speak this prestigious, superior language. Even when the English did, during the age of cartography, get Scottish place names wrong, they sort of did it by accident. Hance told me about a bog near his house which was originally called Puddock Haugh. Puddock is the Scots word for frog haugh means a marshy bit of ground. Very simple place name! The English altered place names, sometimes, by substituting similar-sounding English words. Scots and English are fairly similar, and sometimes they’d get the translation right. For this place, they did not. Today, that bog is called “Paddock Hall,” despite there being neither a place for horses nor a nice big manor house.
This strategy takes a lot longer than a linguistic military invasion, but it serves to put a feeling of inferiority over an entire population. How good a person can you really be, and how good can your home be, if you don’t even speak correctly?
Scots is a language and not a dialect, but this strategy is not too dissimilar from what happens with African American Vernacular English, or AAVE, in the United States. Instead of recognizing AAVE as what it is—one American English dialect among many—education systems in the U.S. often brand it as an incorrect form of English, one that needs to be corrected (or as a “second language”). It isn’t different it’s wrong. Inferior. This is a wildly effective, if subtle, ploy of oppression. “There are plenty of people in Scotland who actually think it’s a good thing,” says Hance. “The narrative is, we’ve been made better through this process.”
The Scottish people even have a term for their feeling of inferiority: the Scottish cringe. It’s a feeling of embarrassment about Scottish heritage—including the Scots language—and interpreting Scottishness as worse, lower, than Englishness. “Lots of Scottish people think to demonstrate any form of Scottish identity beyond that which is given formal approval is not something that should be encouraged,” says Hance.
A gas station in Scotland with the Scots phrase ‘Ye may gang faur an fare waur’ - You may go further and do a lot worse. Kay Roxby/Alamy
Scots faces a unique and truly overwhelming set of obstacles. It’s very similar to English, which allows the ruling power to convince people that it’s simply another (worse) version of English. The concept of bilingualism in Scotland is very, very new. And English, the ruling language is the most powerful language in the world, the language of commerce and culture. More than half of the websites on the internet are in English, it is by far the most learned language (rather than mother tongue) in the world, is the official language for worldwide maritime and air travel, and is used by a whopping 95 percent of scientific articles—including from countries where it isn’t even a recognized official language. Until very recently, says Hance, even Scottish people didn’t think their language was worth fighting for today, the funding to preserve Scottish Gaelic outstrips that for Scots by a mile.
Amid all this, Scots is defiantly still here. In the 2011 census, about 1.5 million of Scotland’s 5.3 million people declared that they read, spoke, or understood Scots. “Despite being in this situation for centuries, we kept going,” says Hance. “We still exist. We’re still separate and different, and have our unique way of seeing the world and our unique way of expressing it.” Scots isn’t endangered the way Scottish Gaelic is it’s actually growing in popularity.
Census data isn’t always as clear as it might sound. There are people who only speak Scots, and can probably understand English but not really speak it. There are people who are fully bilingual, capable of switching, with awareness, between the languages. Some people will start a sentence in Scots and finish it in English, or use words from each language in the same conversation. There are those who speak English, but heavily influenced by Scots, with some words or pronunciations borrowed from Scots.
Technology has been a boon for the language, for a host of different reasons. Spellcheck has been a headache computers and phones do not include native support for Scots, even while including support for languages spoken by vastly fewer people. (There are a few university research projects to create Scots spellcheck, but they’re not widespread.) But this has had the effect of making Scots speakers ever more aware that what they’re trying to type is not English the more they have to reject an English spellcheck’s spelling of their Scots, the more they think about the language they use.
The informality of new forms of communication, too, is helping. Pre-email, writing a letter was a time-consuming and formal process, and the dominance of English as a prestige language meant that native Scots speakers would often write letters in English rather than their own language. But texting, social media, email—these are casual forms of communication. Most people find it easier to relax on punctuation, grammar, and capitalization when communicating digitally Scots speakers relax in that way, too, but also relax by allowing themselves to use the language they actually speak. “Texting and posting, those are largely uncensored spaces, so the linguistic censorship that used to take place when you communicated with other people in written form, it doesn’t happen any longer,” says Hance. “People are free to use their own words, their own language.”
Scots is still wildly underrepresented in television, movies, books, newspapers, and in schools. Sometimes students will, in a creative writing class, be allowed to write a paper in Scots, but there are no Scots-language schools in Scotland. The lack of presence in schools, though, is just one concern Scots scholars have about the language.
“In general, it’s better now,” says Kay, “but it’s still not good enough.”
*Correction: We originally said English and Scots are about as similar as Finnish and Swedish. Norwegian and Danish is a much more accurate comparison. We also said that James I dissolved the Scottish parliament, but this happened after his death.
The History of Cash Bail
The text and history of the Eighth Amendment, as well as U.S. Supreme Court precedent, do not support that argument.
Advocates in the ongoing wave of bail reform should concentrate their arguments on policy grounds rather than on calls for reinterpretations of the Constitution.
Bail is an ancient practice at the heart of a recurring nationwide debate: Should we hold people in jail before trial if they are unable to pay bail? Money-bail practices were well known to the Framers as they drafted the Constitution and the Bill of Rights. Its purpose, to ensure the appearance of an accused individual at trial, was a well understood and uncontroversial element of the criminal justice system in early America. The Framers’ primary concern in drafting the Eighth Amendment’s Bail Clause was to ensure that bail not be set unreasonably high—which was not to say that bail must be affordable, or even available, to all defendants.
Since the founding era, America has experienced two waves of bail reform. Now, a third is developing among several states. Some reformers engage in the political process to seek policy changes through legislation. Others attack money bail as unconstitutional, ignoring the history of the Bail Clause and reinterpreting long-standing principles of due process and equal protection. In this third wave of bail reform, what is past is prologue.
Judges can and should consider a person’s financial status at the time of setting bail, but the Constitution does not require that bail be available in all cases, or that it be affordable to each defendant. If advocates wish to change this, the proper venue is through the legislature, not the judiciary. Trying to persuade judges to rewrite the U.S. Constitution to achieve the objectives of bail-policy reformers threatens injury to the Constitution itself.
The Origins of Cash Bail
Modern American bail law can trace its origins through 15 centuries of history, to the ancient days of Anglo-Saxon England. [REF] Then, unlike today, criminal justice was a largely private, often brutal affair. [REF] Family members were expected to avenge their murdered kin. Any private citizen could kill an offender sentenced to “outlawry.” Anyone caught in the act of committing a crime could be summarily executed. [REF]
Gradually, however, Anglo-Saxon law turned away from blood feuds toward a system of financial compensation paid by offenders to their victims. These payments, known as “wergeld,” were equal to the injured party’s value, which was assigned based on, among other things, the person’s social status. [REF] The late seventh century brought courts of arbitration, which heard and adjudicated complaints between Englishmen. [REF] This transition to a court-centered justice system presented ancient communities with a familiar problem: how to prevent the accused from fleeing to avoid punishment?
Jail facilities were impractical, so Anglo-Saxon law dealt with the problem by releasing the accused on condition that he find a surety—someone who assumed responsibility for ensuring his appearance at trial. [REF] The surety had to put up a pledge equal to the amount of the potential penalty, which would be forfeited if the accused failed to appear. [REF] This early system of bail killed two birds with one stone: It simultaneously provided strong incentives to sureties to ensure their charges appeared in court, and guaranteed payment to victims if they fled.
The Norman conquest of 1066 brought considerable change, as the role of the state in criminal justice grew. Under Anglo-Saxon law, all crimes were considered bailable. But by the time of the Assize of Clarendon, issued in 1166, [REF] Norman custom had evolved to place certain offenses, such as murder and “forest offenses,” [REF] beyond the scope of bail. [REF] Most other offenses, however, remained bailable, largely due to the difficulties involved in detaining individuals for the years it sometimes took for itinerant judges riding a circuit to arrive in a given county. [REF]
Medieval English law gave sheriffs discretionary power to set the amount of bail and to choose whether to jail a defendant. This system invited corruption, including unlawful detention by sheriffs looking to extort payments from arrestees, as well as bribery to secure the release of suspects who were supposed to be held without bail. Consequently, subsequent centuries saw bail law undergo a series of reforms designed to restrain the discretionary authority of sheriffs, normalize the process of bail and pre-trial release, and provide security against unlawful detention. [REF]
Following the adoption of Magna Carta in 1215, [REF] a long series of proclamations and acts of Parliament provided incremental steps to define and protect the legal rights of Englishmen as criminal defendants. The first Statute of Westminster commanded sheriffs to release certain individuals deemed replevisable by the law on “sufficient Surety.” [REF] This and subsequent statutes proceeded to define which offenses were and were not bailable. The Petition of Rights of 1628 curtailed the practice of imprisoning individuals without any accompanying charge. [REF] The Habeas Corpus Act of 1679 [REF] expedited the process of setting bail and releasing defendants prior to trial. The Bill of Rights of 1689 responded to the practice, employed by some judges, of using exorbitant bail to restrain individuals who otherwise would have been entitled to release. [REF] In language instantly recognizable to Americans today, the English Bill of Rights declared “[t]hat excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” [REF]
By the end of the 17th century, English citizens could point to centuries of statutory and common law affording a qualified right to pre-trial release. In England, this right to release was understood to be available only for certain classes of offenses and was unrelated to the ability of the accused to meet the requirements of bail—that is, if sufficient surety could not be obtained, the accused was most often detained. [REF] Thus, pre-trial release was a system designed to balance the interests of the accused with the interest of society in ensuring that wrongful acts be punished, and criminals be prevented from absconding. There was no guarantee that a suspect would be released pending trial. That general framework is still with us today.
Bail in Early America
English colonists traveling to the New World brought their conceptions of law and justice with them. Most saw themselves as Englishmen protected by English law. In Connecticut, Delaware, Georgia, Maine, Maryland, and Rhode Island, colonial charters extended the legal rights enjoyed under English law to colonial Americans without modification. [REF] The inhabitants of some colonies, however, applied the mother country’s laws, including bail law, with slight variation, heralding the federalism we enjoy today. Colonial Massachusetts, through its Body of Liberties of 1641, provided that “[n]o man’s person shall be restrained or imprisoned by any Authority whatsoever, before the law hath sentenced him thereto, If he can put in sufficient securitie, bayle, or mainprise, for his appearance, and good behavior in the meane time,” except in cases where the individual was accused of a capital crime, contempt of court, or other offenses exempted by the legislature. [REF] In 1682, Pennsylvania adopted its own Frame of Government of Pennsylvania, providing that “all prisoners shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident, or the presumption great.” [REF] New York modeled its bail system on Pennsylvania’s, providing bail in all cases save charges of treason and felony. [REF]
Thus, by the dawn of the Republic, American legal custom had already developed a strong presumption favoring pre-trial release by means of a bail payment. Once released, a surety became, in essence, a defendant’s jailer. Sureties were expected to assure that a defendant in their charge complied with all release conditions and appeared in court for trial, and were further responsible for apprehending and detaining a defendant if he fled. [REF] As late as 1872, the U.S. Supreme Court cited English common law to explain the responsibilities and liabilities of sureties with a defendant in their charge. [REF]
Calculating a reasonable sum of bail in each case was also a grave matter. The common law offense of taking insufficient bail appeared in colonial laws, whereby if a party was released on insufficient sureties and did not reappear, the officer who set bail could be fined. [REF] A 1645 law in the Virginia Colony, for example, held sheriffs liable “to pay the award of the court” if he “shall neglect to take sufficient bayle of the party arrested, or otherwise consent to, or be cause of” an accused man’s escape. [REF] Clearly, rather than a mere pro forma act, bail was to be set at an amount judged to be sufficient to incentivize appearance at trial, without becoming excessive.
Bail Under the Constitution
After 1776, the former colonies adopted constitutions that retained specific prohibitions against excessive bail, but did not create an absolute right to bail in all cases. [REF] Rather, the power was reserved to the legislatures to define which offenses were considered bailable. Capital crimes, for example, were subject to special restrictions and were not bailable at all. In America, as in England, the fact that a defendant was accused of a bailable offense did not guarantee his automatic release. Judges were empowered to consider individual factors, such as the evidence against a defendant, the probability of conviction, and his criminal history in determining what amount constituted reasonable bail. And, of course, pre-trial release was not a “get out of jail free card”—it was conditioned upon the ability of the accused to post a reasonable bail and provide adequate sureties that he would return to face judgment. Indeed, the U.S. Supreme Court clarified one century later: “When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment.” [REF]
Bail did not appear in the U.S. Constitution as it was first written and ratified. [REF] Congress specified that “[e]xcessive bail shall not be required” in the language of the Eighth Amendment, which passed with broad support and virtually no debate. [REF] This is hardly surprising given how closely the Eighth Amendment’s language hewed to both existing state constitutions and the English Bill of Rights of 1689 from which “the bail clause was lifted, with slight changes.” [REF] The first Congress also included in the Judiciary Act of 1789 a provision establishing that for “all arrests in criminal cases, bail shall be admitted, except where the punishment may be death.” [REF] Thus, federal law preserved the rights provided for in the various state constitutions, chiefly the strong presumption favoring pre-trial release through bail, legislative control of admittance to bail, and a bar to excessive bail based on the English Bill of Rights and state constitutions. In short, Congress did nothing novel with the Eighth Amendment’s bail provisions.
As rooted as the American justice system is in the common law and traditions of England, it nonetheless experienced unique challenges that produced novel legal consequences. America’s expansive and unexplored frontier, for one, afforded criminal suspects far more opportunity to flee and evade justice than the English islands. Additionally, the “unrooted” and rural life of many early American settlers simply made it harder to find a surety to take responsibility for a defendant in the pre-trial period. [REF] Although sureties often did step forward, “their promise to produce the accused gradually became a promise merely to pay money should the accused fail to appear.” [REF] Some entrepreneurial spirits saw an opportunity. By posting a bond on a defendant’s behalf in exchange for a fee, underwriters could turn a profit. So long as they exercised “reasonable diligence” to prevent escapes, “courts either waived or refunded a substantial percentage of forfeitures.” [REF] Regardless, bondsmen retained their fee.
The exact origin of the modern commercial bail-bond industry in the United States is difficult to pin down, but most trace its lineage to late-19th-century San Francisco. Two brothers, Peter and Thomas McDonough, realized that charging a fee and working directly with defendants was a lucrative business opportunity and founded the nation’s first commercial bail-bond firm from their father’s saloon near San Francisco’s Hall of Justice. [REF] The firm lasted only five decades, and earned a degree of infamy for its ties to organized crime and corruption, but it set a precedent, and the commercial bail bond industry was born.
The average commercial bondsman’s firm works as follows. A defendant, unable to afford bail or locate a family member or friend willing or able to do so, may instead turn to a commercial surety. The firm posts bail in the full court-ordered amount, and charges the defendant a percentage fee, usually 10 percent. [REF] The bondsman has the responsibility to ensure that the accused appears in court and is empowered to track down, detain, and return fleeing individuals. If the firm fails to do so, it forfeits the full amount of bail if it successfully delivers a defendant, the bail amount is returned, and the firm retains the percentage paid by the defendant. The business model has proven successful and easily replicable and has spread throughout the nation. [REF] Indeed, today commercial bondsmen operate in nearly every state, although some states have outlawed the practice. [REF]
Bail in the Supreme Court
Notwithstanding these unique developments, federal bail law was largely unchanged until the middle of the 20th century. In the 1950s, it became the center of several controversies that reached the U.S. Supreme Court. In 1951, 12 communists charged with violating the Smith Act challenged their bail, set at $50,000 apiece, as “excessive” under the Eighth Amendment. [REF] Chief Justice Fred Vinson, writing for the majority in Stack v. Boyle, defended the “traditional right to freedom before conviction,” [REF] but found that pre-trial freedom does not come without conditions:
The right to release before trial is conditioned upon the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty. Like the ancient practice of securing oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is “eccessive” under the Eighth Amendment. [REF]
Importantly, the Court affirmed that the role of bail is to provide an anchor holding a defendant in place pending the outcome of a trial, and held that judges must conduct individualized assessments when considering the amount of bail in each case.
A year later, in 1952, alien communists held without bail pending possible deportation challenged their detention on the grounds that the Constitution afforded them a right to release on bail. [REF] Justice Stanley Reed, writing for a majority of the Court in Carlson v. Landon, rejected the argument that the Eighth Amendment “compels the allowance of bail in a reasonable amount” in all cases. [REF] Reed correctly pointed out:
The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus, in criminal cases, bail is not compulsory where the punishment may be death. Indeed, the very language of the Amendment fails to say all arrests must be bailable. [REF]
Reed based his Eight Amendment analysis by reference to its antecedent English Bill of Rights, which “has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail.” [REF] It is instructive that “[w]hen this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept.” [REF]
Setting Bail When Proper
The Medieval English criminal justice system that produced money bail was quite unlike the criminal justice system that administers bail today. It functioned like an artisan’s workshop, with few professional actors—typically just a sheriff and a magistrate—whose law enforcement roles often fell to members of the community. [REF] Today’s criminal justice system, at least in large urban cities, functions much more like a factory, with many professionals performing discrete tasks, requiring far less direct involvement from the community. [REF]
Jails are no longer impractical. Judges no longer ride circuit. A host of law enforcement officials now work to identify, capture, and detain suspected criminals and track defendants who flee before trial. A sizable bureaucracy keeps the wheels turning, including pre-trial services agents who recommend how to treat criminal defendants before trial and personnel who ensure that any conditions of release are met. [REF] The state has taken much of the responsibility to supervise criminal defendants before trial off the hands of kinfolk who performed that task in medieval England.
Bail played a significant role in the evolution of criminal justice, particularly regarding the pre-trial hearing known as an “arraignment,” in which a defendant typically enters a plea of not guilty to the charges against him and a judge decides what to do with the defendant before trial. [REF] By the 1980s, arraignments exemplified the factory model of criminal justice: brief, efficient exchanges between judge, prosecutor, defense counsel, [REF] and defendant—and behind them a tremendous bureaucracy at work, “involving stacks of paperwork by police officers, deputy U.S. attorneys, defense attorneys, judges, and courthouse workers.” [REF]
At the arraignment, judges must impose “bail or jail,” [REF] or some other release conditions, [REF] before a defendant is convicted. Consequently, the presumption of innocence is pertinent. [REF] Yet a judge cannot be blind to the fact that several government officials, and often a grand jury, have already drawn conclusions about the likelihood of the defendant’s guilt. [REF] Many critics have argued that some judges are unduly swayed by law enforcement concerns that a defendant will pose a significant risk of flight or harm to individuals or the community if released—and increase bail as a means of detaining defendants. [REF] The result, they argue, contributes to a broader problem: that too many people are in jail pending trial “simply because they are poor.” [REF]
Although we have come far from medieval sheriffs extorting bail money, some who experience these procedures firsthand, [REF] as well as academics, [REF] litigators, [REF] policy experts, [REF] professional organizations, [REF] and some judges, [REF] harbor significant concerns about the pre-trial detention of defendants who cannot afford bail. That controversy has generated three waves of bail reform: the first in 1966, the second in 1984, and the third today. Some of today’s advocates disregard the lessons of past reform, seeking instead to rewrite the history and text of our Constitution.
Wave I: The Bail Reform Act of 1966 and “Presumptive Release”
Bail, like the humans who administer it, was never perfect. In 1964, then – U.S. Attorney General Robert F. Kennedy gave an oft-cited critique of bail practices that existed at the time:
Usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. The factor is simply money. How much money does the defendant have? [REF]
Though it may be true in some cases, such a simplistic representation is misleading. Reform-minded legislators in the 1960s were concerned that judges focused on non-financial factors such as the nature of the crime and the character of the defendant too much, not too little. They “condemned” federal rules that “allowed judges to detain defendants” merely by “setting unaffordable bail” with only a “questionable” explanation as to the reason for doing so. [REF] The unstated purpose behind the setting of unaffordable bail was usually that the defendant was too “dangerous” to release. [REF] The net effect, reformers argued, was that a great many people—particularly poorer defendants in crowded city jails—were stuck, often unjustifiably, in detention, while wealthier and possibly more dangerous suspects were able to secure release.
In the face of these criticisms, Congress enacted the Bail Reform Act of 1966, [REF] which declared that “the sole purpose of bail laws must be to assure the appearance of the defendant” [REF] and adopted a policy that no one, “regardless of their financial status,” may “needlessly be detained pending their appearance.” [REF] It directed judges to release all non-capital case defendants on their own recognizance unless doing so would be inadequate to assure their appearance. In such situations, it enumerated additional conditions of release that a judge could impose to meet that goal, including placing the defendant in the custody of a “designated person,” placing restrictions on travel, or one of several forms of money bail, such as an appearance bond or a surety bond. [REF] And the act listed factors for a judge to consider for setting conditions of release. [REF] These included indicia of a defendant’s flight risk, such as ties to the community, as well as his financial resources to permit the setting of a reasonable amount of bail. The law, however, did not permit judges to consider a defendant’s prospective dangerousness to the community in deciding whether to detain someone—the very reason, it was suspected, why many judges were setting bail that was out of reach to many accused offenders. [REF]
Wave II: The Bail Reform Act of 1984 and “Dangerousness”
The 1966 act caused problems almost immediately. In 1970, Congress authorized preventive detention in the District of Columbia at the request of local officials concerned about the release of violent offenders. [REF] By the 1980s, nationwide public-safety concerns stemming from the crimes committed by defendants out on pre-trial release had trumped the liberal release agenda of the 1960s. [REF] Many states changed their bail laws accordingly. [REF] President Ronald Reagan and Chief Justice Warren Burger both voiced this sentiment as well. [REF] The Senate Judiciary Committee decried the 1966 act’s “failure to recognize the problem of crimes committed by those on pre-trial release” and determined “that federal bail laws must address” that alarming oversight. [REF] In 1984, Congress rectified its earlier oversight with a new Bail Reform Act that enabled judges to detain the few “but identifiable” “particularly dangerous” defendants for whom no “stringent release conditions” or likelihood of re-arrest would “reasonably assure” public safety. [REF]
The 1984 law did not throw open the door to excessive bail. In fact, Congress expressly prohibited “using inordinately high financial conditions to detain defendants,” [REF] instead authorizing judges to consider a defendant’s dangerousness when determining whether to hold a defendant pre-trial. Of course, Congress had to ensure that preventive detention would not cast too wide or narrow a net, so it adopted workable but “stringent safeguards to protect the rights of defendants” based in part on the 1970 preventive detention statute for the District of Columbia. Defendants were afforded “a full-blown adversary hearing,” where “the Government must convince [the judge] by clear and convincing evidence,” based on specific factors, “that no conditions of release can reasonably assure the safety of the community or any person.” [REF]
Two defendants detained without bail challenged the law soon after it was enacted. They argued that preventive detention under the act violates the Eighth Amendment and also “constitutes impermissible punishment before trial” in violation of “substantive due process.” [REF] The U.S. Supreme Court rejected both claims and upheld the constitutionality of the act. It found no Eighth Amendment bar to the government “pursuing compelling interests” such as public safety “through regulation of pre-trial release.” [REF] It also concluded that pre-trial detention under the Bail Reform Act “is regulatory in nature, and does not constitute punishment before trial in violation of the Due Process Clause.” [REF]
Some advocates urged Congress to eliminate money bail entirely, but legislators considered that “unjustified.” [REF] The Department of Justice recommended preserving money bail as a historical and effective method to deter flight and secure reappearance. [REF] Congress appears to have adopted that position when crafting the 1984 act. Per the Senate Judiciary Committee report, “[A] financial condition of release that results in the pre-trial detention of the defendant…does not necessarily require [their] release” if the judge determines that “it is the only form of conditional release that will assure the person’s future appearance.” [REF]
Today, courts across the country recognize that they are prohibited from “using unnecessarily high bail amounts as a replacement for the required findings necessary to order pre-trial detention.” [REF] Critics, however, maintain that state courts still set unaffordable money bail in unfair, irrational, and unnecessary ways. [REF] This has led to the third wave of bail-reform efforts now unfolding in several states. [REF]
Wave III: Familiar Policy Proposals and Novel Misinterpretations of the Constitution
In 1966 and 1984, advocates brought compelling policy concerns about money bail to their legislators, specifically alleging that too many people are jailed before trial—with devastating personal consequences—“simply because they are poor” and cannot afford bail. [REF] Today’s advocates direct their policy concerns not only to legislatures but to courts, staking out misleading positions supported by factually incorrect arguments that money bail is unconstitutional. Two of these arguments stand out.
Fourteenth Amendment. In 2016, the U.S. Justice Department wrote a “Dear Colleague” letter [REF] to state and local “judicial actors” [REF] asserting that “any bail practices that result in incarceration based on poverty violate the Fourteenth Amendment.” [REF] This is incompatible with long-standing constitutional law. Just as the English jurist William Blackstone found it clear in 1765, [REF] federal courts in this country have considered it clear in modern times that “bail is not excessive merely because the defendant may be financially unable to post an amount otherwise meeting the above standards.” [REF] A defendant’s present financial inability to make bail “is certainly…a concern which must be taken into account when determining the appropriate amount of bail,” however, “it is neither the only nor controlling factor to be considered by the trial court judge in setting bail.” [REF]
At least two state courts have also addressed the issue and reached the same conclusion. The Supreme Court of Vermont recently concluded that “[a]lthough both the U.S. and Vermont Constitutions prohibit excessive bail, neither this court nor the U.S. Supreme Court has ever held that bail is excessive solely because the defendant cannot raise the necessary funds.” [REF] The Supreme Court of Wyoming also determined that “it is not necessary for a court to [fix bail] at a point that it can be made by the defendant,” because “the measure is adequacy to insure [sic] appearance” not “the defendant’s pocketbook and his desire to be free pending possible conviction.” [REF]
The Justice Department concluded otherwise by interpreting too broadly a body of federal judicial precedent which holds that an indigent convicted criminal’s present inability to pay certain fines or fees is generally an impermissible basis to impose or enhance a post-conviction sentence of incarceration or to deny a hearing. [REF] The U.S. Supreme Court has distinguished post-conviction punishment from pre-trial bail and detention, for the same reasons that Blackstone did over 250 years ago: Pre-trial “imprisonment…is only for safe custody, and not for punishment.” [REF]
If an aspect of pre-trial detention is punitive, the remedy lies not in equal protection, but due process. [REF] In 1956, the U.S. Supreme Court, led by then-Chief Justice Earl Warren, made “a significant effort to alleviate discrimination against those who are unable to meet the costs of litigation in the administration of criminal justice.” [REF] In Illinois, criminal defendants could obtain a trial transcript for appellate review from the state for a fee. The Court decided that the fee effectively barred indigent defendants from receiving adequate appellate review and so held that requiring them to pay the fee was unconstitutional. [REF] Since then, “a few relevant Supreme Court precedents” have treated the “unequal impact of certain state activities on indigents as ‘invidious discrimination’ forbidden by the Fourteenth amendment.” [REF] But “the Court’s reasoning is not explicit” in these cases. The Court simply raises “a concern that the poor not be denied access to certain privileges available to those who can pay.” [REF] In 1983, the U.S. Supreme Court in Bearden v. Georgia suggested sweeping those few cases into a due-process framework, in part because “indigency in this context is a relative term rather than a classification, [so] fitting ‘the problem of this case into an equal protection framework is a task too Procrustean to be rationally accomplished.’” [REF]
Since 1956, the Court has clarified that equal protection is not the panacea for economic and social welfare concerns that some bail-reform advocates wish it to be. The Equal Protection Clause says that states cannot “deny to any person within its jurisdiction the equal protection of the laws.” For laws concerning economic status, equal protection jurisprudence merely requires the government to provide a “rational basis” for its policies, and “it hardly can be said that” money-bail statutes operate “without rational relationship to the legislative objective of securing the presence of the accused upon trial.” [REF]
The Supreme Court has rejected arguments that heightened scrutiny is required when laws permit different outcomes based partly on differences in material circumstances. [REF] To the contrary, as Bearden itself shows, the Court has been unwilling to wield the Equal Protection Clause to turn our capitalist society into a socialist one. [REF] It “confers no substantive rights,” [REF] so it cannot provide an absolute right to release on bail that the Bail Clause itself denies. Thus, equal protection challenges to money-bail statutes are “virtually certain to result in victory for the government,” and naysayers have fifteen centuries of history to refute. [REF]
The Supreme Court has also rejected the notion that the Due Process Clause provides a “backstop” whenever the meaning of a constitutional provision explicitly addresses a party’s claim and prevents that party’s desired outcome. [REF] “Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a specific sort of government behavior, ‘that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.’” [REF] The Court’s jurisprudence thus flatly rejects the position held by the Obama Justice Department, that it is unconstitutional to set bail that indigent defendants are unable to pay. Neither the Equal Protection Clause nor the Due Process Clause offer a hidden path around the Bail Clause and its clear historical meaning. [REF]
If, alternatively, the argument is that present inability to make bail prolongs pre-trial detention, and that prolonged detention may prejudice the indigent detainee’s case, [REF] then the argument is misdirected. The concern in such a situation cannot be an existential challenge to money bail, but rather ought to be a specific complaint directed against a party who causes delay, either the prosecutor or the judge. Although it is true that due-process violations may sometimes require a court to dismiss an indictment, [REF] that would require the defendant to show much more than a mere lapse in time. He must prove that a state actor caused the delay, that the delay “caused substantial prejudice to appellees’ rights to a fair trial[,] and that the delay was an intentional device to gain tactical advantage over the accused,” or the official otherwise acted in bad faith. [REF] In practice, only extraordinary cases pass this test. [REF]
No Consensus. In spite of that clear jurisprudence, former U.S. Attorney General Eric Holder wrote to Maryland’s Attorney General, Brian Frosh, “Courts across the country have invoked” U.S. Supreme Court precedent “to find that wealth-based pre-trial detention schemes are unconstitutional.” [REF] He supports that claim by citing three cases, one each from South Florida, South Mississippi, and Alabama [REF] —hardly “across the country”—and none finding wealth-based bail to be unconstitutional. [REF]
The court in the Florida case affirmed the constitutionality of Florida’s money-bail scheme. [REF] The Mississippi court reiterated there is no “absolute right to release on bail” under the Fourth or Eighth Amendments or “even under the strict judicial scrutiny directed at state bail procedures for Fourteenth Amendment purposes.” [REF] Holder writes that the third case, Alabama v. Blake, [REF] “also [found] that a wealth-based pre-trial bail scheme ‘violates an indigent defendant’s equal protection rights guaranteed by the United States Constitution.’” [REF] While the court in Blake held that a particular state rule of pre-trial procedure violated due process under the Alabama and U.S. Constitutions, [REF] it explicitly noted that the scheme contained a severability clause [REF] and affirmed that it is constitutional for “a judicial officer to require monetary bail as a condition of release in appropriate cases.” [REF]
Money bail has deep historical roots in Anglo-Saxon law and custom. Bail emerged to solve a problem we still grapple with today—balancing the general right of defendants to pre-trial freedom with the need of society to protect against flight and ensure punishment. In the United States, defendants have a right to reasonable bail, but Congress and state legislatures can define which crimes are, and are not, considered bailable. With respect to individuals charged with crimes that are considered bailable, the Eighth Amendment provides protection from excessive, but not unaffordable, bail. In certain limited circumstances judges can order pre-trial detention in the name of public safety.
The Supreme Court has repeatedly rejected constitutional challenges to the use of money bail in the United States. To the extent that arguments can be made against its use today, they are ordinarily policy questions, not legal or constitutional issues. Nevertheless, reformers are taking their arguments to court, misconstruing judicial precedent and misrepresenting facts and history in a “Hail Mary” bid to see money bail declared unconstitutional. Rather than contort the text of the Constitution to achieve their policy goals, advocates for bail reform should make their arguments to legislators and the public, the proper venues for this discussion.
—John-Michael Seibler is Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies, Institute for Constitutional Government, at The Heritage Foundation and Jason Snead is Policy Analyst in the Edwin Meese III Center for Legal and Judicial Studies, Institute for Constitutional Government, at The Heritage Founation.
Activity 7. Modern Versions of the Arthur Legends
Conclude this lesson by inviting students to investigate how the Arthurian legend has been adapted in our own times, particularly by filmmakers. The "Camelot Project" website link at Labyrinth has an extensive bibliography of films on Arthurian themes, some of which may already be familiar to students: Monty Python and the Holy Grail, Indiana Jones and the Last Crusade, A Kid in King Arthur's Court. Students might form study groups to view a selection of Arthurian films on video and write reviews from an informed medievalist's point of view. Which themes and motifs of Arthurian legend appear in each film? How are the values implicit in the story related to life in our society?
Students need not have completed all the activities in this lesson, but they should have examined the historical origins of the Arthurian legends and investigated how historians, writers, and artists have used the legends of King Arthur to reflect the concerns of their own times. This assessment is a writing assignment which can be presented as an individual paper or as a group paper. This writing activity should take three class sessions: the first session will allow students to discuss the question and then draft their response. During the second session students will write their papers. During the third session students will polish and peer edit their versions. Student papers will be evaluated on the depth of knowledge shown about the King Arthur material studied and the felicity and correctness of the student’s language use.
Review legends studied in the most depth during this unit. Remind students there are many additional legends we have not studied or only briefly explored. Ask the students to write a brief essay detailing how the legends of Arthur that they have experienced in writing and image reflect some of the political or social concerns and/or attitudes of their day. What is the value to a country in creating a written, larger-than-life account of a strong leader such as King Arthur?
As its name implies, the Labyrinth website offers many paths into the Middle Ages. Students interested in this period might go to the Internet Medieval Sourcebook and follow the "England" link to explore the castles of Great Britain and a variety of living history projects that bring medieval times to life. Or they might click on "France" to take a virtual tour of that country's Gothic cathedrals and trace the growth of medieval cities.
Tuesday, April 05, 2005
The Delinquent Sir Gawain and His Precious Green Knight
This poem has been the subject (or victim, depending on your perspective) of a literal mountain of literary criticism, and I doubt I will say anything new on the topic. While this bothers me a bit because of my thirst for the unique and my distate for the cliche, I have promised to comment on this poem and so I shall.
Knowing the story line as I read the actual poem made for emphases on certain aspects of the poem which I dare say probably wouldn't have stood out if I'd been ignorant of the basic plot as I read the work. Two such aspects which particularly caught my attention are the near involvement of King Arthur and the theme of slothfulness in Gawain the Pure.
King Arthur almost kills the Green Knight himself. When the GK (which may also stand for the medieval "Gude Kwalitae" fashion guide) first issues his proposition, King Arthur steps into the ring because all of his knights are chicken. It is only the quick thinking and smooth talking of our dearly beloved Sir Gawan, nephew of the King, which prevents this tale from being "King Arthur and the Green Knight."
Suppose with me for a moment that Sir Gawain had been sick that first fateful evening, unable to attend the dinner. Pretend King Arthur had kindly cut the oddly colored knight in two, and the year has now passed: the King is now on his quest to let the rogue knight return his blow. Presuming the King would have been more honest than his beloved nephew, the poem may in fact have turned out to be an original version of "Mort d'Artur," leading one to the conclusion that Sir Gawain actually preserved the entire Arthurian kingdom by stumbling forward and asking for permission to bash the stranger.
Yet if King Arthur had allowed the GK to have his strike, would his enemy have actually cut him down? Or, if even Sir Gawain had returned the magic sash, would the knight have taken a slice at anyone at all?
My contention is that the Green Knight's character, as displayed through his unoffensive challenge at the King's Court and his hospitality expressed to Gawain, was not as interested in killing a challenger as he was interested in showing off his sash. If King Arthur had been his antagonist, I believe the knight would have refrained from killing Arthur simply because Arthur is king if Gawain had been honest, I believe the knight would have let him go unharmed. So perhaps Gawain didn't actually do anything very heroic all the same, it's an interesting thing to think about.
The development with slothfulness I mentioned was just noticing how the author has Gawain sleeping and relaxing all day while the Green Knight is out hunting and being productive. That is all.