Justice for Sale

Justice For Sale

Political Exigency and the Development of a Legal System

Hannah Simpson∗†

May 21, 2017

Abstract

How does the rule of law develop in a country? Effective legal institutions have been hypothesized to emerge from states’ long-term interests in growing tax revenue. Where political regimes are instead concerned with short-term survival or simply cannot collect regular taxes, the rule of law will remain inadequate. But because of the historical nature of this process, convincing causal evidence is scarce. I reﬁne existing intuitions about the origins of the rule of law by arguing that, because a strong legal system can directly generate revenue and political support, politically weak regimes may have incentives to invest in legal capacity and property rights protections. Using original historical data from the dawn of the common law system in 12th century England, I present direct causal evidence that political and ﬁscal exigency can motivate state investment in the provision of property rights protections, and show that these investments may translate into long-term growth in legal capacity.

∗E-mail address: [email protected]. Website: hannahksimpson.com. Address: Wilf Family Department of Politics, 19 West 4th Street, New York, NY 10012 †I thank my dissertation committee (Sanford Gordon, Catherine Hafer, and David Stasavage), Carlo Horz, Renard Sexton, the discussants at MPSA and APSA, the participants at the Yale Law and Politics conference, and the participants at the Princeton Politics and History conference for their excellent feedback and suggestions. All errors are mine.

1 1 Introduction

The citizens of states that enjoy strong rule of law reap enormous normative and ﬁnancial beneﬁts. The impact of rule of law failures is equally large. Absent or inadequate rule of law in a country forestalls economic development, undermines basic order, and exposes the vulnerable to expropriation and abuse. Because of its importance, international organizations and governments have spent billions in the past decade to support the rule of law in developing nations. The World Bank alone lent an average of $335 million per year between 2005 and 2010 in support of rule of law initiatives.1

How is the rule of law established in a state? According to the general view, widely accessible, property-rights-protecting, order-keeping legal systems develop as side effects of states’ need to obtain revenue through taxes and loans. The corollary of this argument is that where political leaders are focused on short-term survival, or cannot consistently collect domestic taxes, the rule of law will remain inadequate (Besley and Persson, 2011; Olson, 1993; McGuire and Olson, 1996). The emergence of property rights regimes in European states—especially

England—is often used to illustrate this view, and their experiences applied to contemporary cases (e.g., North and Weingast, 1989; North, 1990). However, because of the distant historical origins of these regimes, rigorous empirical assessments of their development are difﬁcult, as they require detailed sources of historical data both arising out of these origins and conducive to causal identiﬁcation.

In this paper, I make two contributions to the literature on the emergence of state capacity and the rule of law. On the theoretical side, I argue that current models are incomplete. More speciﬁcally, I claim that, because strong legal systems are independently valuable sources of revenue and political capital, political regimes concerned by short-term survival and facing political resistance to tax collection may have independent incentives to invest in building legal capacity and expanding property rights protections. On the empirical side, I collect original data from the dawn of the common-law system in 12th century England, using com-

1The World Bank, “World Bank: Initiatives in Justice Reform” (Washington, DC: World Bank, 2012). Available at http://documents.worldbank.org/curated/en/575811468175154113/pdf/707290WP0Full000Box370050B00PUBLIC0.pdf.

2 prehensive contemporary records on English legal activity and court revenue between 1189 and 1196. To test my argument, I leverage an unusual natural experiment: the kidnapping of King Richard I for ransom between 1192-1194. I show that in the aftermath of the kidnap, the English government—at the time congenitally unable to levy consistent taxes, under serious ﬁnancial strain, and facing the threat of rebellion by Richard’s opportunistic younger brother John—deployed the Royal Court system strategically to raise money and maintain political support for King Richard. Moreover, these efforts generated an immediate increase in property rights protections and access to the court, and appear to have sparked the enormous growth in the Royal Court’s legal capacity that led to its preeminence by the end of the

13th century.

The evidence that the Royal Court was used to raise money and political capital in the immediate aftermath of the state emergency is as follows. I ﬁnd a large increase in the

Royal Court’s activity after the kidnapping, together with a signiﬁcant drop in the number of pardons granted on legal debts to the crown. This implies that the shock of the ransom in- centivized an immediate attempt to increase revenue by increasing collection numbers while decreasing pardons. A closer look at the data suggests a heterogeneous strategy consistent with the government’s joint ﬁnancial and political challenges. By exploiting variation in the degree to which English counties were exposed to an ongoing military threat from Prince

John, I show that to the degree the Royal Court engaged in revenue-generation, it did so primarily in politically safer counties. In counties under direct threat from John, the Court instead focused on improving overall property rights and consumer protections. To this end, it vastly increased citizen access to the court via the possessory assizes, court actions relating to rights in real property, and intensiﬁed its monitoring of seller violations of price caps and weights and measurements regulations.

Additional evidence suggests that, while the geographical patterns accompanying the kidnapping shock may have dissipated over time, the general increases in court activity and property protections were not short-lived. Instead, over the next few decades, they spread throughout England and were accompanied by a general increase in the Royal Court’s capac-

3 ity. My primary data show that the large increase in court activity post-kidnap is accompanied by a modest increase in the number of royal justices employed, suggesting an immediate investment in court activity. Moreover, by the last year of this data, in 1196, patterns in court activity are beginning to regularize, and the provision of property rights via the possessory assizes is becoming a consistent part of the justices’ yearly activity. By 1215, the counties are so used to the consistent and accessible provision of property rights by the Royal Court that the presence of royal justices in each county four times a year to preside over the possessory assizes is required by the Magna Carta.2 Related evidence from a secondary dataset of settlement agreements concluded before the Royal Court between 1182 and 1199 provide additional suggestive evidence that the royal court’s accessibility and its capacity to enter- tain large numbers of claims increased exponentially in the last half of the 1190s, as does narrative evidence from legal historians on the expansion and regularization of court actions during this period, and on the emergence, by 1200, of a nascent legal profession in response to increasing demand for professional assistance before the Royal Court.

These ﬁndings have important implications for our understanding of the development of the rule of law. Rather than being an impediment to legal development, in nascent states, a regime’s short-term survival needs and inability to raise revenue through taxes may encourage it to value a strong legal system as a source of revenue or political support, and consequently to invest in legal capacity-building. These investments may result in the regime’s deployment of its legal system in political or biased ways throughout the country. However, because such a regime will value the system only to the extent that the system provides it with independent revenue and support, sanctioning the regime for this behavior will simply encourage it to cease investments in legal capacity building altogether. This suggests that policymakers may have to accept a tradeoff between the equal provision of no law to everyone, and the unequal provision of some law to some.

2Translation available from the British Library, at https://www.bl.uk/magna-carta/articles/magna-carta- english-translation. For support of this interpretation of the clause, see Pollock and Maitland (1895a, 151).

4 2 Argument

Comparative political economists largely understand the development of the rule of law in relation to its effect on economic growth: if a legal system provides accessible and effective property rights protections, it facilitates growth; otherwise, it impedes growth (e.g., North,

1990; Acemoglu and Robinson, 2001; Dixit, 2004). Under this interpretation, the reason to create and maintain a properly-functioning legal system, from a state’s perspective, is to grow the source of the state’s tax revenue. Thus a primary goal, even for the bandit rulers of primor- dial states, will be to provide order and basic protection from expropriation to the inhabitants of their domains in order to ensure a steady stream of extractable (taxable) revenue (Olson,

1993; McGuire and Olson, 1996)—assuming, of course, that the ruler has a long enough time horizon to make investments in future revenue streams worthwhile, and the ability to extract rents (Acemoglu, 2005; Besley and Persson, 2011, 2009). In this view, the state’s capacity to tax and its willingness to provide of effective property protections go hand in hand: as the capacity to tax expands, so do the potential returns to investing in rule of law (Besley and

Persson, 2009, 2011). As economic systems modernize, the state’s willingness to invest in protecting private property rights may receive an additional boost by the state’s desire for a steady supply of loans (North and Weingast, 1989). The corollary to this argument is that where a state is preoccupied with short term survival, or where it cannot, or does not need, to rely on internal taxation for revenue, the result will be ineffective property rights protection

(Drelichman and Voth, 2014; Besley and Persson, 2011; Glaeser and Shleifer, 2002).

What this argument fails to incorporate is that a legal system is a powerful asset in its own right. Its ﬁnes, fees, and licensing requirements produce revenue—as one legal historian notes, discussing the growth of English royal justice in the 13th century, “the provision of law and order [is] proﬁtable” (Baker, 1979, 14). Perhaps even more importantly, it is the vehi- cle by which rights and privileges are allocated among the population. These characteristics make investment in the rule of law independently valuable to a state, not just as a guarantor of taxable production or loans, but as a separate source of money and political capital. The revenue a strong legal system generates may be used to shore up budget shortfalls. Its prop-

5 erty rights protections can be assigned in a targeted manner, to build a coalition or split an opposition, or distributed widely to increase widespread goodwill. These assets have always been recognized and deployed. Throughout history, states (and judges) have used legal ﬁnes and fees to generate income (e.g., Berman, 1983; Klerman, 2007), and the practice is still in evidence today (as recently demonstrated in Ferguson, Missouri (see, e.g., United States

Justice Department, 2015)).

The independent value of a legal system may be especially important to a state when its indirect role—generating taxable income—is less useful. Consider a politically weak regime like the 12th-century English Crown, facing consistent threats from powerful domestic elites.

Such a regime may (and the English Crown did) view repeated aggressive tax collection as a risky endeavor (e.g., Gillingham, 1999). When in need of extra cash, it may be preferable to manipulate criminal ﬁnes, which proceed from populations less likely to have powerful friends, or legal fees, which are voluntary payments for a desired service. At the same time, this type of regime will be especially concerned with maintaining sufﬁcient political support by doling out protections and privileges. If the political threat to the regime is from elites, the regime may try to counteract the threat by ensuring that the general population has a stake in its survival, by providing protections and privileges to that group that it may not receive from the alternative local elites. (And indeed, the early English crown did frame its royal court as an “unbiased” provider of justice, in opposition to the local courts run by the barons

(e.g., Baker, 1979)).

There are two hurdles to overcome in order for a regime to use its legal system in this way. First, the legal system must be capable of widespread enforcement of both the money demands it makes in fees and ﬁnes, and the protections and privileges it promises. If the legal system currently lacks the capacity to compel high numbers of payments, or to manage high numbers of cases, some ﬁxed cost investment by the regime will be necessary to build its capabilities. This investment may only become worthwhile when the situation is dire: in the face of a sudden shock that renders a new source of revenue or political support especially valuable. This is one reason why war (or shocks to military technology) is thought to be so

6 important in building the extractive capacity of the state (Tilly, 1990; Besley and Persson,

2011; Gennaioli and Voth, 2015).

Second, these different political strategies are not necessarily compatible: raising money from a country’s population does not usually incur its goodwill. As a result, a threatened regime may need to trade off between support-building and revenue-generating strategies, with the mix depending upon the size of its budget deﬁcit, and its current political vulnerabil- ity. The greater the threat the regime faces, the more consequential this tradeoff will become.

If the threat is relatively constant across the country, there is no easy way to resolve it. But if the regime’s control is threatened differentially in different areas of the country, one way to mitigate this tradeoff may be to price discriminate: providing affordable services where support is most needed, and raising prices in areas more loyal to the regime. As we will see, this appears to have been the English strategy.

3 Background

3.1 Royal Law in Twelfth Century England

The common law system is thought to have originated in the system of royal justice established over the thirty-ﬁve year reign of Henry II (1154-1189). During the ﬁrst two decades of his rule, Henry II elevated royal justice to prominence by re-initiating the practice of traveling judges who administered crown justice throughout the kingdom and substantially broadening the legal authority of the crown (Milsom, 1969; Baker, 1979, 13-32). By the 1170s, the King’s court had established its authority over felony crimes via the Assizes of Clarendon (1166) and

Northampton (1176); it also had jurisdiction over a range of more minor criminal offenses

(including what we might categorize today as consumer fraud), and could directly adjudicate certain classes of property disputes and punish those who unjustly dispossessed others via the Assizes of Mort d’Ancestor, Novel Disseisin, and Darrein Presentment—together known as the possessory assizes (Pollock and Maitland, 1895a, 110-130). The possessory assizes proved exceedingly popular: over the course of the twelfth and thirteenth centuries, the court allowed cases brought under increasingly tenuous applications of these assizes, and began to

7 function (for a fee) as a record-keeper of land conveyances between private parties (Milsom,

1969; Baker, 1979; Cheney, 1967). In addition to these powers, the Royal Court provided licenses for various activities, and gave royal approval to property transfers by inheritance or sale. The economically valuable right to marry an heir or heiress had to be bought from the

King (sometimes by the heirs and heiresses themselves), as did the custody of orphaned minor heirs and their lands, and the occupation of vacant administrative and clerical posts (see, e.g.,

Stenton, 1925; Baker, 1979). Similarly, a fee had to be paid the king for estates held in chief to pass by inheritance, or, occasionally, by sale (Pollock and Maitland, 1895a).

During this time, the royal “court” was composed of the King, together with his chief and associate justices. These justices were not judges in the modern sense; there was no independent judiciary as we think of today. They were advisors to the king, many of whom held separate ministerial or ecclesiastical positions in the country, who assisted in “the administration of the realm” (Baker, 1979, 17). Much of the enforcement of royal justice worked by the imposition of fees and amercements (fines). Petty criminals were amerced. Communities that did not catch and punish serious criminals were fined. The serious criminals themselves, if caught and convicted, generally suffered rather gruesome physical punishments, but they also forfeited their property to the Crown—as did those who fled rather than face trial. Plain- tiffs in the royal court had to pay various sureties and access fees in order to be heard, and the royal judges were vigorous in extracting monetary penalties from those who made false claims in court, absconded in the middle of a case, or otherwise interfered with the the King’s justice (Milsom, 1969; Baker, 1979).

At what point royal justice and the protections it afforded really began to be accessible to the general public is uncertain. It is evident that until at least the middle of the 12th century, the royal courts were prohibitively expensive, and royal oversight in the counties was spotty

(Pollock and Maitland, 1895a; Baker, 1979). During this period, it seems, the royal protection of individual rights was still out of the reach of most subjects. But the point at which the change begins is unclear. By the later years of the 1190s, it is underway: the judicial rolls of the Royal Court (available only from these years forward) “are largely occupied by accounts

8 of law-suits about very small pieces of ground between men of humble station” (Pollock and

Maitland, 1895a, 138). A few years later, it is well underway: “by 1200, many types of writ [to bring suit in the Royal Court] had become common form in the Chancery, and were issued on payment of a standard fee [rather than being bargained for and created on the spot]” (Baker,

1979, 54). By 1215, it has happened: royal justice is conceded in the Magna Carta. “[S]o successful have the possessory assizes been that men will not now be content unless four times in every year two royal justices come into every county for the purpose of enforcing them” (Pollock and Maitland, 1895a, 151). In these early decades of the 13th century, in spite of the the Royal Court’s increasing vigor in imposing amercements, “the people ... ﬂocked to the judges for the recovery of their possessions, and were prepared to pay money for royal justice” (Baker, 1979, 13-14)

Why the change came about is equally unclear. With especial regard to criminal justice, some legal historians have noted that the proﬁtability of royal amercements presumably had something to do with the crown’s increasing enthusiasm for the maintenance of order and the punishment of criminals throughout the realm in the thirteenth century (Baker, 1979).

Others, however, have argued that the proﬁtability of the royal courts was more a by-product of their development than the reason for it (e.g. Milsom, 1969). Pollock and Maitland (Vol. II) profess no set opinion: to them, the procedural evolution of the common law, together with its expanding reach, “was an empirical process, for the supply came in response to a demand; it was not dictated by an abstract jurisprudence; it was conditioned and perturbed by ﬁscal and political motives; it advanced along the old Roman road which leads from experiment to experiment” (559).

3.2 The Reign of Richard I

When Richard I took the throne at his father’s death in July, 1189, he inherited a well- established administrative bureaucracy and a rudimentary legal system with wide pre-existing authority to protect property rights and punish crimes. Within six months of his coronation,

Richard had left England on crusade, after raising a large crusade fund through the sale of land, heiresses, and lucrative administrative ofﬁces—the imposition of a previous crusade tax

9 in 1189 made the raising of funds through a new tax untenable. Before he left, he appointed a new set of bishops and ministers to run England in his absence and established a peace with Wales and Scotland that would last throughout his reign. In an attempt to dampen any royal ambitions in his younger brother John during his travels, Richard also gave John the counties of Derbyshire, Nottinghamshire, Cornwall, Devonshire, Somerset, and Dorset, and most of the land in the county of Lancashire. John also obtained the Honors of Tickhill, Eye,

Peveril, Wallingford, Marlborough, and Ludgershall, the lands of which were concentrated re- spectively in Yorkshire, Suffolk, Nottinghamshire and Derbyshire, Berkshire, Wiltshire, and

Buckinghamshire (Morris, 1992). Richard would not return to England until late March, 1194

(Gillingham, 1999, 110-120).

In Richard’s absence, his ministers oversaw the day-to-day business of the country, including the administration of royal justice. Although Prince John—as Richard had anticipated— began aspiring to the throne almost as soon as Richard had left the country, he was dissuaded from any seriously bad behavior by his mother Queen Eleanor, who together with some of the

King’s ministers threatened to conﬁscate his lands should he misbehave (Gillingham, 1999,

239). In the fall of 1191, the administration underwent a shake-up: the Chief Justiciar and

Chancellor, William Longchamps, lost control of his post after incurring a severe public back- lash by having his men physically drag the Archbishop of York out of a chapel in which he had sought sanctuary. Richard appointed Walter of Coutances, the Bishop of Rouen, to take

Longchamps’ place. For the most part, however, affairs in England continued along a fairly normal course until December 1192, when the King was captured and imprisoned for ransom by Duke Leopold of Austria and Henry VI, the Holy Roman Emperor, on his way back from the crusades. At the time, Richard was at sea between Italy and Germany, hoping to reach

England by January, 1193. The Holy Roman Emperor described the capture in a December

28, 1192 missive to King Phillip of France in the following way:

We have thought it proper to inform you of what happened to Richard, king of

England ... as he was crossing the sea on his way back to his dominions. His ship

was driven by winds onto the Istrian coast and there it was wrecked at a place

10 between Aquileia and Venice. By God’s will he and a few others escaped. A loyal

subject of ours, Count Meinhard of Gorz, and the people of the district, hearing

that Richard was in their territory ... went to arrest him. ... [H]e escaped. He

reached a town called Friesach ... where Friefrich of Pettau arrested six more of

his knights. Richard himself escaped yet again ... and rode hard in the direction of

Austria. But the roads were watched and guarded, and our dearly beloved cousin,

Leopold duke of Austria, captured the king in a disreputable house near Vienna.

He is now in our power. We know this news will bring you great happiness.3

From the perspective of all the individuals involved in this missive, Richard’s shipwreck was remarkably lucky. Duke Leopold bore a personal grudge, stemming from Richard’s having insulted his usefulness in battle during the crusades. King Phillip of France held a similar grudge—Richard had married another woman while on crusade, despite being betrothed to

Phillip’s sister—and was, addition, always open to opportunities for gaining land in France.4

Henry VI’s motives, by contrast, had nothing to do with either Richard or his landholdings: he was facing two separate internal rebellions, had aspirations for land in Italy, and badly needed both money and military assistance. As a consequence, he decided that Richard would be released upon his payment of 100,000 silver marks (an exorbitant sum which later turned into 150,000 marks) and his promise to help the Emperor on his next military expedition in

Sicily (Gillingham, 1999, 230-236).

The news of the kidnapping was a severe shock in England. According to Richard’s fore- most biographer:

[T]he provisions [Richard] had made for defending and governing his dominions

during his absence on crusade had worked well. For more than two and a half

years, from July 1190 to March 1193, the Angevin institutions had functioned re-

markably well ... But his imprisonment provoked a totally unforseeable crisis”

(Gillingham, 1999, 251).

3Gillingham, 1999, 222. 4At this time, Richard held a large amount of land in France in addition to his land in England

11 By January, 1193, John had learned the news from Phillip, and was earnestly considering how to overthrow the kingdom of England by force. Queen Eleanor and the king’s ministers were left with the task of at once defending the kingdom from John and a possible French invasion, and raising the money for ransom. Luckily, John’s attempts to involve the the Welsh and the Scots in rebellion failed (they declined to intervene on John’s side); and a French invasion never materialized. By April, 1193, most of John’s castles had been conﬁscated by his mother, leaving his forces—while still a threat—largely conﬁned to Tickhill and Nottingham

(Hoveden, 1201, 1870; Morris, 1992). Over the next year, affairs continued in this manner: the regents raised the money for ransom, keeping a wary eye on John. In February of 1194, after payment of 100,000 marks—despite John’s offer to pay Henry VI 1,000 marks for each additional month he kept Richard, or 80,000 to keep him until autumn—Richard was released

(Gillingham, 1999, 248). Richard spent the ﬁrst months after his return in late March, 1194, besieging John’s last strongholds. After defeating his brother in June, he departed again to begin war with France, leaving Hubert Walter, his new Chief Justiciar, with the task of raising money for the new war (Cheney, 1967, 90-93). Although these efforts were undertaken too late in the ﬁscal year for the results to be included in the 1194 revenue records, they are visible in the Pipe Rolls for subsequent years, beginning in 1195 (Cheney, 1967). In the next section, I discuss the contents of the Pipe Rolls in greater detail.

4 Data

The Pipe Rolls for the ﬁscal years from September 29, 1188 to September 29, 1196 form the primary source of empirical data for this paper. Each Pipe Roll is a record, carefully written in abbreviated medieval Latin script on long scrolls of sheepskin parchment, of all payments made on every account open with the royal treasury of England in the preceding ﬁscal year.5

The accounts are generally organized by the county in which the monetary obligation originated; however, some counties are paired, i.e., accounts in Norfolk or Suffolk are all categorized as being in “Norfolk and Suffolk.” The monetary obligations themselves include feudal

5To save space, the clerks tasked with recording information in the Pipe Rolls abbreviated most words, using various symbols to indicate that letters were missing and (sometimes) which letters those were.

12 dues; the yearly rents and profits on land owned by or in the crown’s custody; and court fees, court fines, amercements, and payments for licenses or property transfers. This last group of obligations are further distinguished as being “New,” i.e., accounts opened during the last fiscal year, or as existing accounts carrying over from previous years (see generally

Pipe Roll Society, 1884; Stenton, 1925). The Pipe Rolls do not contain a complete record of all crown income: for example, emergency taxes that went directly to fund a particular purpose are not included in the Rolls. Thus, the Pipe Rolls exclude the Saladin Tithe of 1188, the tax for the King’s ransom in 1193, and the tax to ﬁnance the war with France in the summer of

1194 (Gillingham, 1999).6

Because all Pipe Roll records from 1158 to 1224 were transcribed and printed by the

British Public Records office and the Pipe Roll Society in the 19th and early 20th centuries in order to preserve them for posterity, I was able to obtain printed Latin copies of the Pipe Rolls for these seven years. For fiscal years 1188 and 1190-1196, I used Optical Character Recog- nition (OCR) software and intensive manual error-checking to convert the printed versions into machine-readable text documents. The Pipe Roll for fiscal year 1189, which spanned nine months of Henry II’s reign and three of Richard I’s, was printed in 1844 with its Latin abbreviations intact. Consequently, that document required the manual expansion of its abbreviations and manual re-entry into a machine-readable text format.7 Figure 1 shows a page fragment from the printed Pipe Roll pf 1189.

This effort generated 38,692 individual revenue records for the nine ﬁscal years. Because many records belong to accounts spanning multiple years, I used a fuzzy matching algorithm to match individuals in year t-1 with those in year t. This algorithm identiﬁed 14,495 new accounts between September 29, 1189 and September 29, 1196.8 Table 1 (below) shows the total numbers of accounts falling into each category of record over this eight year period.

6Note that these exclusions cut against, not for, my results. 7See The Pipe Roll for the First Year of the Reign of King Richard the First. British Public Records Ofﬁce. Ed., Joseph Hunter. London: 1844. 8I cannot with certainty distinguish between new and old years in the 1188 Pipe Roll, because I cannot match these accounts to a previous year.

13 Figure 1: Pleas in Buckinghamshire, 1189

Table 1: Revenue Records, by Category

Category # County Farms and Other Revenues from Crown Lands 1,617 Escheats and Forfeits 2,403 Scutages and Tallages 2,396 Fines for the 1189 Massacres of the Jews 169 Debts owed the Massacred Jews 631 Pleas, Conventions, and Amercements 7,279

Table 2 provides descriptive statistics for several major categories of revenue, 1189-1196: taxes, county farms and escheats, and pleas, conventions, and amercements. To correctly interpret the table, note the following: ﬁrst, the much larger numbers and amounts owed/paid in farms/escheats accounts in 1189 and 1194-1196 are largely due to the inclusion in the

Pipe Rolls, as an experiment in 1189, then consistently from 1194-1196, of an itemized “Roll of Escheats,” although jumps in estate conﬁscations likely also account for a part of these increases. Between 1190 and 1193 these escheated estates are not mentioned in the Pipe

Rolls; it is not clear whether that is because they were under private ownership or because they were accounted for in a separate document now lost. Second, the large difference between

14 what is paid and what is owed in the county farm accounts is due largely to the fact that the county sheriffs were crown administrators, and spent a large part of the yearly farm revenue administering the county. These expenditures are listed in the pipe rolls, but are not counted as paid into the treasury. Third, some farm revenue was paid into the treasury at Easter each year. However, the actual amount varied by farm and year, and is sometimes difﬁcult to decipher from the Pipe Rolls. This table does not take those payments into account. Finally, the count of paid accounts includes all accounts for which there is information on what was paid—i.e., it includes all accounts on which nothing was paid.

Table 2: Summary Statistics, Major Categories of Revenue, by Year

New Taxes Farms, Escheats New Pleas, etc. Year Count Total (£) Mean Count Total (£) Mean Count Total (£) Mean

Owed 1189 18 257 14 361 18675 52 760 2802 4 Paid 1189 18 8 >1 358 8786 25 758 897 1

Owed 1190 261 2713 10 268 15440 58 614 45339 74 Paid 1190 255 689 3 266 4045 15 608 15318 25

Owed 1191 96 4533 47 205 11423 55 817 5633 7 Paid 1191 96 29.27 >1 200 3182 16 817 810 1

Owed 1192 32 400 13 223 10932 49 207 1326 6 Paid 1192 32 70 2 221 4286 19 206 264 1

Owed 1193 27 662 25 202 11135 55 1073 2396 2 Paid 1193 25 10 >1 200 2742 14 1066 631 >1

Owed 1194 355 4641 13 752 16298 22 382 14162 37 Paid 1194 353 1961 6 752 7936 11 382 4544 12

Owed 1195 137 3170 23 780 19262 25 1753 13431 8 Paid 1195 137 1126 8 787 10819 14 1753 4278 2

Owed 1196 1079 10715 10 645 20924 32 622 9815 16 Paid 1196 1079 3585 3 645 9210 14 622 2735 4

Before turning to my identiﬁcation strategy and results, I discuss several interesting patterns in the data, shown in Figure 2 (below), with implications for my methodological choices.

First, the justices appear to have collected signiﬁcantly more Pleas, Conventions, and Amerce-

15 ments in odd than in even years. Second, in 1190, there is a signiﬁcant spike in the number of

“privileges”—rights to inheritance, to the custody of valuable heirs and lands, to an heiress, to administer a lucrative government ofﬁce—purchased.

Figure 2: Number of Pleas, Conventions, and Amercements Per Year, by Type

Counts by Type

amercement court fee 500 court fine privilege 400 300 Count 200 100 0

1189 1190 1191 1192 1193 1194 1195 1196

Year

The spike in privileges is attributable to Richard’s extreme efforts to raise money for his crusade in the ﬁrst six months of his reign, between July of 1189 and his departure in January of 1190. The biennial pattern in the data is more interesting: it is likely due to the fact that the justices of the Royal Court were also “the king’s council ... the body of advisers and courtiers who attended the king and supervised the administration of the realm” (Baker, 1979, 17).

Thus, in addition to their judicial duties, they had a range of administrative obligations. It appears they focused on their administrative work in even years (at Westminster) and on their judicial work in odd years. The number of justices actively collecting pleas, conventions,

16 and amercements in each year, shown in Figure 3, further supports this interpretation: it follows the biennial pattern exactly.

Figure 3: Number of Justices Participating in Collection of New Pleas, Conventions, and Amercements, Per Year 35 30 25 20 Year 15 10 5

1189 1190 1191 1192 1193 1194 1195 1196

Participating Justices

5 Empirical Strategy

Isolating the causal effect of changing political exigencies on the provision of justice is dif-

ﬁcult. For example, while some legal historians have argued that increases in judicial zeal for punishing crimes against the crown can be explained by the need to ﬁnance impending wars (Baker, 1979), others have suggested that increases in legal revenue ought instead to be understood as a useful side-effect of other, more normatively appealing goals (e.g. Milsom,

1969). Thus, visible increases in court revenue could be intentional wartime fund-raising— or might simply have permitted the commencement of hostilities. A similar problem arises

17 in understanding the relationship between legal privileges and popular support: is a regime handing out privileges to generate goodwill, or to reward it?

King Richard’s kidnapping provides a way around these difﬁculties. According to Richard’s biographer, John Gillingham, with the exception of the replacement of William Longchamp by Walter of Coutances as justiciar in 1191, the English government remained largely politically stable between Richard’s departure in 1190 and his kidnapping almost three years later.

Having raised the money for his crusade in 1189, Richard made no additional ﬁscal demands on the home administration over these years, and England’s administrative procedures did not change prior to his kidnapping. The as-if-random event of Richard’s shipwreck and subsequent kidnapping allows me to isolate the effect on the royal justice system of a sudden shock to the English regency’s need for revenue and political support. Moreover, geographic variation in the degree of threat posed by Prince John after the kidnapping allows me to test whether the royal court developed a conditional strategy to meet its political goals during the crisis: expanding revenue in safe counties, and coalitions in threatened counties.

My identiﬁcation strategy focuses on new legal accounts in the three years on either side of the kidnapping: 1190, 1191, and 1192 pre-kidnap; and 1193, 1194, and 1195 post-kidnap.

(Recall that each Pipe Roll year contains accounts for the preceding ﬁscal year: thus, 1190 describes accounts opened between September of 1189 and September of 1190; 1191 describes accounts opened between September of 1190 and September of 1191; and so on.) I construct three baseline models. The ﬁrst model is a sharp test, and compares new accounts in 1191 to those in 1193. I omit 1192 due to the justice’s biennial revenue-collection strategy: because the justices did less, and different, work in “even” years than in “odd” years, comparing activity in

1192 and 1193 would bias results of the analysis in my favor. The second model broadens the scope of the analysis, comparing new accounts in 1191-1192 to those in 1193-1194. The third model makes use of three years on either side of the kidnapping, comparing new accounts in

1190-1192 to new accounts in 1193-1195. In all models, I categorize each county as under high, low, or no threat from Prince John. The counties or county pairings adjoining John’s major strongholds in Nottinghamshire and Tickhill for which I have data (Lincolnshire, Le-

18 icestershire and Warwickshire, Staffordshire, and Yorkshire) are categorized as under high threat. Eight other counties or county pairings adjoining other lands owned by John (Hamp- shire, Gloucestershire, Norfolk and Suffolk, Wiltshire, Buckinghamshire and Bedfordshire,

Westmorland, Cumberland, and Berkshire) are categorized as under low threat. The remain- ing counties (Worcestershire, Shropshire, Sussex, Surrey, Rutland, Oxfordshire, Northum- berland, Northamptonshire, Middlesex, Kent, Essex, and Hertfordshire) are categorized as under no threat.

I exclude from all analyses the counties and estates in Prince John’s possession between

1190 and 1193. These counties and estates are omitted from the Pipe Rolls between 1190 and 1193, as they were not a source of crown revenue during those years. Moreover, when they reappear, it is because they have been conﬁscated. For similar reasons, I do not include

fines imposed on the supporters of Prince John in 1194 and 1195. Additionally, for the bulk of the paper I limit the analysis to conservatively-identified new accounts, i.e., to those accounts identified as “new” both by the medieval clerks themselves and by my matching algorithm.9

Finally, note that while Richard’s plans to depart on crusade may have increased political un- certainty in England almost immediately after his coronation, any pre-kidnap pricing-in by the Royal Court of political and economic instability would simply weaken the shock generated by the kidnapping itself.

6 Strategic Deployment of the Royal Court

I find significant evidence that the political and economic shock of Richard’s kidnapping did motivate the government to deploy the Royal Court to meet its economic and political needs, and that this deployment improved the rule of law in England as evidenced by an increase in property rights protection and, in some counties, access to justice. First, the likelihood of a partial or complete pardon being granted to an individual on a debt to the crown decreased in the aftermath of the kidnapping across all counties in the dataset. This is shown in Figure 4, which displays the point estimates and 95% confidence intervals from a series of logit regres-

9Note, however, that the results are robust to an expansion of the analysis to “likely new accounts,” which I denote as all groupings of at least 40 accounts within the same county and recorded by the same set of royal justices which do not appear in previous Pipe Roll years.

19 sions where the dependent variable is a dummy indicator for a “pardon” and the treatment is a binary indicator for the kidnapping. From top to bottom, the ﬁgure displays the results for each of the three regression speciﬁcations, within those counties that were highly threatened, under a low threat, or safe from John. This suggests that the royal court was paying some attention to the Crown’s revenue needs: a decrease the incidence of pardons is not likely to generate goodwill among the populace, but it is likely to increase revenue.

Figure 4: Effect of Kidnapping on Likelihood of Pardon

High (sharp test)

High (two year)

High (full sample)

Low (sharp test)

Low (two year)

Low (full sample)

Safe (one year)

Safe (two year)

Safe (full sample)

-2.5 -2.0 -1.5 -1.0 -0.5 0.0 0.5

These coefficients were generated using logit regressions. All specifications include county fixed effects. All Two-Year and Full-Sample specifications additionally include an even-year dummy to control for the biennial pattern in the data. All standard errors are robust. The number of observations from top to bottom: 513, 528, 1089; 545, 659; 1011; and 338, 435, 984

Over the same time frame, I ﬁnd a signiﬁcant increase in overall court activity. The three graphs in Figure 5 depict the absolute number of new pleas in high-threat, low-threat, and safe counties for intervals of one, two, and three years on either side of the kidnapping. All three graphs show a general increase in court activity post-kidnapping, but in each, the in-

20 crease is most pronounced in the counties most threatened by John.10 Figure 6 maps this phenomenon geographically in the highly threatened counties for the three years on either side of the kidnapping. Nottinghamshire and Derbyshire, where Nottingham Castle lies, are colored in red; the darker the grey coloring in the ﬁve counties surrounding them (including

Yorkshire, which contains Tickhill), the more accounts were opened in that county.11 Notice that this increase is not driven by geographical expediency: these counties are by no means the closest to London, and statistical tests of the effect of geographic distance on various measures of court activity consistently yield null results.

Figure 5: New Pleas, Conventions, and Amercements 1190-1195, by Threat Level

1191 and 1193 1191-1192 and 1193-1194 1190-1192 and 1193-1195 350 350 800 300 300 600 250 250 200 200 400 150 150 100 100 200 50 50 0 0 0

High threat Low threat No threat High threat Low threat No threat High threat Low threat No threat

Number of New Accounts Number of New Accounts Number of New Accounts

These ﬁgures demonstrate that, in the immediate aftermath of the kidnapping, the Royal

Court sprang into action. That its increase in activity is so targeted to the counties under high threat from John’s forces implies that the Court’s focus may have been motivated, at least in part, by attempts to maintain support for Richard in his absence. There is one other possibility: perhaps the increase in court activity in these vulnerable counties was brought about by a breakdown in law and order. As I show below, this does not seem to be the case.

Figure 7 shows amercements imposed in one, two, and three year intervals around the kidnapping within the high threat counties, broken down by legal basis. There are ﬁve bases:

10Note that this pattern is robust to including four years on either side of the kidnapping; consequently, the three-year results are not an artifact of two “even” years prior, and two “odd” years post-kidnap. 11Note that these ﬁgures underestimate the numbers of new accounts opened in “odd’ years due to the practice by the clerks of listing, for those who paid immediately in full, only the lump sum total paid in and the number of individuals by whom it was paid.

21 Figure 6: Number of New Accounts in High Threat Counties, Pre- and Post-Kidnap

felony crimes; violations of assizes regulating the use of forests; violations of assizes standard- izing weights/measures and capping prices on wine and cloth (“consumer fraud”); violations of the possessory assizes; and neglect by an administrative unit or individual of policing duties

(e.g., not reporting felonies to the Crown; not raising the hue and cry; permitting suspected felons to flee). As is clear from the figure, there appears to be no real change in the incidence of felonies or policing failures in the years following the kidnapping.12 However, there is a large increase in both the number of fines imposed on wine merchants for price-cap infractions, and in amercements for property rights violations in cases brought under the possessory assizes.

This suggests that the kidnapping did not cause a general breakdown in law and order in the high-threat counties. Instead, it appears to have motivated the royal court to provide better protection for private property holders and consumers.

12Note that the justices only stayed in a given county long enough to deal with Crown business. Thus, their mere presence in a given year would not depress felonies or neglect of policing throughout the year. Additionally, as before, the pattern holds for four years on either side of the kidnap.

22 Figure 7: New Criminal Fines in High Threat Counties, Pre- and Post-Kidnap, by Basis

1191 and 1193 1191-1192 and 1193-1194 40 40 30 30 20 20 10 10 0 0

Consumer Fraud Felony Forest Policing Possessory Assize Consumer Fraud Felony Forest Policing Possessory Assize

New Fines by Legal Basis New Fines by Legal Basis

1190-1192 and 1193-1195 80 60 40 20 0

Consumer Fraud Felony Forest Policing Possessory Assize

New Fines by Legal Basis

This increase in property protections in the high-threat counties could be due to several factors. The justices could have simply been spending more time in these counties, allowing more people the opportunity to bring their cases before the Royal Court. Or they could additionally have made the Royal Court more appealing by lowering the cost of bringing suit.

Here, I present evidence for this latter option by estimating the effect of the kidnapping on

23 average fee and ﬁne amounts for high-threat, low-threat, and safe counties in a series of ﬁxed effects regressions where the dependent variable is the amount charged on each account and the treatment is again a binary indicator for the kidnapping. The left-hand-side of Figure

8 shows (from top to bottom) the resulting point estimates and 95% confidence intervals for the one, two, and three-year specifications, for each county threat level. As is clear, no significant, sustained changes in fee and fine amounts charged appear to have resulted from the kidnapping—except in those counties coded as highly threatened by Prince John.

Figure 8: Effect of Kidnapping on Fee and Fine Amounts in High Threat, Low Threat, and Safe Counties, without (left) and with (right) a control for 1190

High (sharp test) High (sharp test)

High (two year) High (two year)

High (three year) High (three year)

Low (sharp test) Low (sharp test)

Low (two year) Low (two year)

Low (three year) Low (three year)

Safe (one year) Safe (one year)

Safe (two year) Safe (two year)

Safe (three year) Safe (three year)

-0.6 -0.4 -0.2 0.0 0.2 0.4 0.6 0.8 -0.6 -0.4 -0.2 0.0 0.2 0.4 0.6 0.8

All specifications include county fixed effects. All Two-Year and Full-Sample specifications include an even-year dummy to control for the biennial pattern in the data. All standard errors are robust. The number of observations from top to bottom in each plot are: 513, 528, 1089; 545, 659; 1011; and 338, 435, 984.

To ensure that, in the three-year speciﬁcations, this negative result was not driven by the spike in expensive privilege sales in 1190, I re-run the speciﬁcations, including a dummy for

1190. The results are shown on the right-hand side of Figure 8. Interestingly, controlling for the spike in privilege sales in 1190 makes no difference to the estimates in the high-threat counties, but reveals a more consistent increase in fee and ﬁne amounts in the other counties.

24 Together, these results suggest that the justices may have been strategically targeting lower- threat counties for revenue production, while providing better (and more) property rights protections in higher-threat areas.

Figure 9 maps this effect geographically in the ﬁve highly threatened counties only for the three years before and the three years after the kidnapping. As before, Nottinghamshire and Derbyshire are colored in red; the darker the grey coloring in a surrounding county, the higher the average fees and ﬁnes charged in that county. The decrease in average fee and

ﬁne amounts is clear: to give the effect context, the mean amount charged per new account in

Yorkshire decreased from an average of 87 pounds in the three years prior to the kidnapping to an average of 5 pounds in the three years after.

Figure 9: Mean Amounts Charged on New Accounts In High Threat Counties, in Pounds, 1190-92 and 1193-95

One last result provides additional evidence that the justices were not simply targeting more people with lower ﬁnes in high-threat counties, but were actually providing greater access to the courts. Only in this subset of counties is there is a consistent, signiﬁcant decrease in the average amount charged an individual to bring a case before the Royal Court. This decrease is shown in Figure 10, both with and without the inclusion of a dummy for 1190.

25 Notice that the overall regression results track the pattern in Figure 8.

Figure 10: Effect of Kidnapping on Average Amount Charged to Bring a Case Before the Royal Court in High Threat, Low Threat, and Safe Counties, without (left) and with (right) a control for 1190

High (sharp test) High (sharp test)

High (two year) High (two year)

High (three year) High (three year)

Low (sharp test) Low (sharp test)

Low (two year) Low (two year)

Low (three year) Low (three year)

Safe (one year) Safe (one year)

Safe (two year) Safe (two year)

Safe (three year) Safe (three year)

-1.5 -1.0 -0.5 0.0 0.5 -2.0 -1.5 -1.0 -0.5 0.0 0.5 1.0

These results are evidence that, in the immediate aftermath of the kidnapping, the King’s ministers strategically deployed the royal justice system both to raise revenue and to generate support for King Richard. The Royal Court increased its presence throughout the country.

In the counties where Richard was on stronger footing, the Court appears to have charged more people either the same amount or a greater amount of money in fees and ﬁnes, while decreasing pardons. This is consistent with a strategy to increase revenue, perhaps at the cost of a little political goodwill. In the counties where Richard was on shakiest ground, the

Court greatly expanded both its overall activity and the amount of that activity dedicated to the possessory assizes and the punishment of price-cap violations. At the same time, there is a large decrease in the average amount charged to bring suit before the court under the possessory assizes. This is consistent with a strategy to increase political support. Finally,

26 although the targeted drop in prices in the high-threat counties dissipates in 1196, the increase in activity does not—in fact, 1196 shows an enormous increase in court activity over all previous even years in the data. This suggests that while the Court’s political targeting of high-threat counties for discounts may have disappeared with the threat, the kidnapping did spark a signiﬁcant long-term shift in the Court’s capacity and its relevance as a provider of property rights protections in England. In the next section, I present more detailed evidence in favor of this claim.

7 Capacity of the Royal Court

Historians are largely agnostic about the exact timeline over which royal justice in England became the common law: standardized, supreme, and broadly accessible. However, they agree that much of this growth, both in the court’s accessibility and in the system of writs that formed the procedural basis for the medieval common law, occurred between the last half of the 12th century and the ﬁrst half of the thirteenth (Pollock and Maitland, 1895a,b; Baker,

1979). Moreover, a number of developments clearly occurred over a much narrower span of time.

In this section, I present several pieces of evidence that provide some support for the proposition that the kidnapping may have sparked a permanent increase in the Royal Court’s capacity and accessibility. I draw on historical accounts of the period and the primary dataset described above, and construct an additional dataset of the ﬁnal concords concluded before the Royal Court between 1182 and 1199. First, even by 1196, there was a change in the

Royal Court’s biennial pattern of activity: after the kidnapping, more justices were engaged each year than previously, and in 1196 the biennial pattern appeared to be fading—court administration of the possessory assizes was signiﬁcantly higher than in all previous even years. Second, evidence from the data I gather on ﬁnal concords shows a huge expansion in land conveyances recorded by the Royal Court in the second half of the 1190s, together with a large decrease in the average size and value of the properties involved. Third, by 1200 the possessory assizes were important and common enough that a class of lawyers has emerged to litigate them; in the next few years, the royal justices began to disengage from their other

27 administrative functions and served increasingly as professional judges. Finally, both the invention and the standardization of writs, which continued apace through the 13th century, began in earnest between the 1180s and 1200.

As discussed above, by the signing of the Magna Carta in 1215, the people of the English counties not only desired, but expected the royal justices to hold court in their counties at least four times each year to preside over the property-rights cases that fell under the possessory assizes. The relevant clause of Magna Carta reads:

“Inquests of novel disseisin, mort d’ancestor, and darrein presentment shall be

taken only in their proper county court. We ourselves, or in our absence abroad

our chief justice, will send two justices to each county four times a year, and these

justices, with four knights of the county elected by the county itself, shall hold the

assizes in the county court, on the day and in the place where the court meets.”13

Pollock and Maitland (Vol. I) argue that the requirements laid down in Magna Carta were not novel; instead, the Magna Carta was meant to force King John to restore the rules “that

[were] observed during the early part of his reign” (151). With regard to the Royal Court, this meant rescinding John’s attempt to limit Royal Court activity to activity in his own personal presence (which created substantial inconveniences for litigants who were now forced to follow John and his court as they traveled around the country) (Id.). Thus, at some point between the 1190s and the 1210s, the Royal Court’s biennial cycle must have been replaced with something more like a biannual one. And indeed, there is some suggestive evidence that this transition may have begun very shortly after the kidnapping. Consider Figures 2 and 3 above. There is a clear increase in the number of justices active in odd years after the kidnapping (of approximately 7 justices), suggesting that more justices were recruited during this period. And in 1196, the number of active justices stays at around 20, at least 12 individuals higher than in previous even-numbered years. In the same year, Figure 2 shows that new pleas, while well below those in 1195, are well above all previous even year levels. This suggests that 1196 may be the point of transition from the court’s biannual pattern of activity,

13https://www.bl.uk/magna-carta/articles/magna-carta-english-translation.

28 although more data is needed to fully conﬁrm this trend.

Moreover, recall that the increase in judicial activity post-kidnap was primarily reflected by an increase in the justices’ focus on the possessory assizes. Figure 11 plots the number of new fines for possessory assize violations between 1189 and 1196, with the high-threat counties in red, and all counties in blue. By 1195, the primacy of the possessory assizes had somewhat expanded from the high-threat counties, and in 1196 the justices continued to administer fines under these assizes in such numbers that they actually exceed the number of possessory assize fines in 1189.

Figure 11: Number of New Fines for Possessory Assize Violations, by Year

150 All counties High threat counties 100 50 Possessory Assize Fines Assize Possessory 0

1189 1190 1191 1192 1193 1194 1195 1196

Year

As the work of the justices serving the Royal Court increased with the widespread use of the possessory assizes, so did their specialization as judges. By the end of the second decade of the 13th century, justices were becoming “disengaged from governmental business,” and the

Chief Justiciar, “who [was] both the King’s prime minister and the president of the highest law court[, became] extinct” (Pollock and Maitland, 1895a, 183). Other specialties emerged even sooner. Because the frequency with which Royal Justices visited the counties could not keep up with demand, by 1200, the Royal Court had recognized a class of professional attorneys

29 whom it allowed to represent individuals in the Royal Court at Westminster (Baker, 1979,

20).

Evidence from a secondary dataset I construct of 1,237 medieval “ﬁnal concords” concluded before the Royal Court in 1182-1199 also suggests that, in the wake of the kidnapping, the

Court underwent a longer-term shift in both capacity and accessibility. All but 18 of these agreements were concluded (though certainly not begun) in 1195 and later. They are os- tensibly settlement agreements arising out of litigation over various rights in real property, each containing detailed information regarding the land and parties involved. However, the disputes that generated them are believed to have become primarily ﬁctitious very early in their history, from the 1190s onward. This phenomenon, which itself suggests a very early expansion in the use of the royal court, emerged because the ﬁnal concords were technically available only to litigants, but were very valuable as a means of recording a conveyance of rights in land (Pollock and Maitland, 1895a, 94-103). Their value increased especially in

1195, when the Royal Court began to produce an extra copy of the concords for safekeeping, in addition to the copies given each of the parties (Id.). Beginning in either 1194 or 1195, there is a remarkable pattern: the total number of ﬁnal concords concluded per year rises sharply, while the average amount of land in acres dealt with in each document plummets. This re-

ﬂects the phenomenon Pollock and Maitland note in court documents beginning in 1194: the court appears to have been transitioning from providing justice only to the very wealthy, to dealing primarily with “very small pieces of ground” and “men of humble station” (138).

30 Figure 12: Median Number of Acres at Issue and Total Number of Settlement Fines Recorded, by year, 1189-April, 1199

800 Acres Cases 600 400 200 Median Number Acres/Total Number Fines Acres/Total Number Number Median 0

1190 1192 1194 1196 1198

Year

Yet more evidence may be found in patterns in the production of writs — which had to be obtained from the Chancery before a litigant could bring his or her suit before the Royal

Court. In the 1170s and even the 1180s, few writs had been standardized; litigants who could not ﬁnd a writ to suit their case had to bargain for a custom-made one (Pollock and

Maitland, 1895a,b). By 1200, many types of writ were “common form,” and payment for them was via a standardized fee (Baker, 1979, 54). By the ﬁrst quarter of the thirteenth century, formal “registers” or collections of past writs were being compiled for use by the clerks of the

Chancery and the new class of professional attorneys (Baker, 1979, 55-56, 177).

In light of these historical accounts, the additional quantitative evidence presented in this section suggests that the solidiﬁcation of the Royal Court’s role as the preeminent protector of property rights throughout England, which occurred over the course of the 13th century, may have originated in the Royal Court’s usefulness to the Crown as a generator of revenue and

31 support in times of political exigency. The Court’s legal capacity also saw a signiﬁcant increase in this period, as measured by the professionalization of its judges, the rapid emergence of lawyers by 1200 and instructional manuals on Royal Court litigation by the 1220s, and the overwhelming increase in possessory assize litigation and land conveyances dealt with by the court in the last years of the 1190s and the ﬁrst years of the 1200s.

8 Conclusion

The determinants of the rule of law are important to scholars and policymakers alike. In this paper, I provide a theoretical reﬁnement to the current literature on the preconditions for rule of law emergence, and demonstrate its relevance to the emergence of the common-law system in 12th century England using newly-collected historical data. I present causal evidence that weak regimes concerned by their immediate political survival and faced with the challenge of raising revenue without resorting to aggressive taxation may attempt to raise income and support by investing in the capacity of their legal systems.

My ﬁndings have important empirical implications. For example, in weak or emerging regimes with regional variation in elite regime support, my ﬁndings suggest that we might expect a threatened regime to attempt to win over the citizenry by providing new access to state services—such as legal services. In weak or emerging regimes suffering from revenue shortfalls, we might expect a regime to invest in expanding legal services, rather than tax collection, to increase revenue. Thus, one avenue for future research is to test these implications, and more generally to study the effects of expenditure and political shocks on legal system development in an explicitly comparative, modern setting. The research design used here—exploiting an exogenous shock—can be fruitfully applied to the study of the rule of law elsewhere.

Other avenues for future research include expanding the yearly time-series data drawn from the Pipe Rolls to include every year up to the Magna Carta in 1215. This endeavor would be a valuable mapping of the development of the Royal Court and the common law system during a crucial period in its history. Additionally, from a theoretical perspective, it would be valuable to have a more precise understanding of the conditions under which weak regimes

32 will respond to financial and political shocks by investing in legal capacity. More specifically, such an endeavor should focus on the interaction between a regime’s legal and fiscal capacity

(posited by, e.g., Besley and Persson (2011)) and the necessary starting characteristics of the legal system.

Finally, my ﬁndings also have policy implications for current attempts to build the rule of law in modern-day developing countries. As a general matter, discouraging regimes in such countries from using their legal systems for political ends may simply cause regimes to lose interest in maintaining these systems at all. Instead, more thought should be given to whether the ways in which such a regime is deploying its legal system (1) are motivating it to invest in building the system’s capacity; and (2) are providing an overall increase—even an unequally-distributed one—in access to justice for citizens in the country.

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